United States v. Derrick S. Lewis

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-12938

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DERRICK S. LEWIS,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:17-cr-00195-SCB-AAS-1

____________________

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2 Opinion of the Court 22-12938

Before NEWSOM, ABUDU, and MARCUS, Circuit Judges.

PER CURIAM:

Derrick Lewis, proceeding with counsel, appeals his convic-

tions after a jury trial and the ensuing 240-month sentence for con-

spiring and aiding and abetting to possess with intent to distribute

cocaine and marijuana, in violation of 21 U.S.C. §§ 846 and

841(a)(1), (b)(1)(A), and (b)(1)(B). The conspiracy began when

Lewis, a restaurant owner, recruited Darrell Flowers -- a business

owner with warehouses in many states and relationships with lo-

gistics companies that moved freight -- to help him transport mil-

lions of dollars of cocaine and marijuana from Phoenix, Arizona to

Tampa, Florida to be distributed. On February 24, 2017, as part of

a United States Drug Enforcement Administration (“DEA”) inves-

tigation, law-enforcement officers in Tampa found 15 kilograms of

cocaine and 444 kilograms of marijuana in a U-Haul van rented by

Lewis. The same day, officers recovered another ten kilograms of

cocaine in an SUV that Lewis had left in a parking lot. Four months

later, officers arrested Lewis, but, shortly before trial, he fled. He

was arrested in Mexico about four years later, and then tried and

convicted of the trafficking conspiracy and the substantive drug

crimes.

On appeal, Lewis argues that: (1) the district court erred by

denying his motion to suppress evidence recovered from vehicles

used in the conspiracy; (2) the district court erred by denying his

motion for judgment of acquittal based on insufficient evidence of

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22-12938 Opinion of the Court 3

his knowledge of the crimes; (3) the district court abused its discre-

tion by denying his claim of a marital-communications privilege

during his ex-wife’s testimony; (4) the district court abused its dis-

cretion by admitting into evidence cocaine and cash in violation of

Federal Rule of Evidence 404(b); (5) the district court erred by ad-

mitting into evidence a certificate from the Florida Department of

Revenue containing testimonial hearsay; (6) at sentencing, the dis-

trict court clearly erred by finding he was an organizer or leader of

the conspiracy and imposing a 4-level enhancement; (7) the district

court plainly erred by applying a 2-level enhancement for obstruc-

tion of justice; and (8) his 240-month total sentence is substantively

unreasonable. After careful review, we affirm.

I.

When reviewing the denial of a motion to suppress, we re-

view the district court’s factual determinations for clear error and

the application of the law to those facts de novo. United States v.

Smith, 821 F.3d 1293, 1302 (11th Cir. 2016). In so doing, we review

findings of fact in the light most favorable to the prevailing party

and afford “substantial deference to the factfinder’s credibility de-

terminations, both explicit and implicit.” United States v. Lewis, 674

F.3d 1298, 1303 (11th Cir. 2012). We must accept the version of

events adopted by the district court “unless it is contrary to the laws

of nature, or is so inconsistent or improbable on its face that no

reasonable factfinder could accept it.” United States v. Ramirez-

Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (quotations omitted). We

“may affirm the denial of a motion to suppress on any ground

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4 Opinion of the Court 22-12938

supported by the record.” United States v. Caraballo, 595 F.3d 1214,

1222 (11th Cir. 2010).

We similarly review the sufficiency of the evidence to sup-

port 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.

Reeves, 742 F.3d 487, 497 (11th Cir. 2014). We are “obliged to affirm

the convictions if a reasonable jury could have found the defendant

guilty beyond a reasonable doubt.” Id. We also review de novo

whether a hearsay statement is testimonial and implicates the Sixth

Amendment’s Confrontation Clause. United States v. Wilson, 788

F.3d 1298, 1316 (11th Cir. 2015).

We review a district court’s evidentiary rulings for abuse of

discretion, including its ruling on a claim of evidentiary privilege,

and review the court’s factual findings for clear error. United States

v. Langford, 647 F.3d 1309, 1319 (11th Cir. 2011); United States v. Sin-

gleton, 260 F.3d 1295, 1301–02 (11th Cir. 2001). We will not reverse

an erroneous evidentiary ruling if the error was “harmless.” Lang-

ford, 647 F.3d at 1323. We will not reverse a conviction “if sufficient

evidence uninfected by any error supports the verdict, and the er-

ror did not have a substantial influence on the outcome of the

case.” Id. We’ve held that an erroneous admission of evidence was

harmless when it was cumulative of other permissible evidence.

United States v. Rivera, 944 F.2d 1563, 1567, 1569 (11th Cir. 1991).

In reviewing sentencing issues, we review the sentence a dis-

trict court imposes for “reasonableness,” which “merely asks

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22-12938 Opinion of the Court 5

whether the trial court abused its discretion.” United States v. Pugh,

515 F.3d 1179, 1189 (11th Cir. 2008) (quoting Rita v. United States,

551 U.S. 338, 351 (2007)). We review the district court’s imposition

of an aggravating role enhancement for clear error. United States v.

Shabazz, 887 F.3d 1204, 1222 (11th Cir. 2018). When reviewing a

court’s imposition of an adjustment for obstruction of justice, we

generally review the district court’s factual findings for clear error

and its application of those facts to the Guidelines de novo. United

States v. Guevara, 894 F.3d 1301, 1311 (11th Cir. 2018).

However, when a party fails to make specific objections at

sentencing after being given an opportunity to do so by the district

court, we will only review those challenges to the sentence on ap-

peal for plain error. United States v. Ramirez-Flores, 743 F.3d 816,

821 (11th Cir. 2014). In order to preserve an objection, a defendant

“must raise that point in such clear and simple language that the

trial court may not misunderstand it.” Id. (quotations omitted). To

establish plain error, the defendant must show (1) an error, (2) that

is plain, and (3) that affected his substantial rights. United States v.

Turner, 474 F.3d 1265, 1276 (11th Cir. 2007). If the defendant satis-

fies these conditions, we may exercise our discretion to recognize

the error only if it seriously affects the fairness, integrity, or public

reputation of judicial proceedings. Id. “An error is plain if control-

ling precedent from the Supreme Court or the Eleventh Circuit es-

tablishes that an error has occurred.” Ramirez-Flores, 743 F.3d at

822 (quotations omitted). The relevant time for assessing whether

an error was plain is at the time of appellate consideration. Id.

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6 Opinion of the Court 22-12938

Absent exceptional circumstances, an issue not raised in an

initial brief on appeal will not be considered by this Court. United

States v. Campbell, 26 F.4th 860, 871–875 (11th Cir. 2022) (en banc).

A party fails to adequately brief a claim when he either makes only

passing references to it or raises it in a perfunctory manner without

supporting arguments and authority. Sapuppo v. Allstate Floridian

Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014).

II.

First, we are unpersuaded by Lewis’s claim that the district

court erred by denying his motion to suppress. The Fourth

Amendment protects against unreasonable searches and seizures.

U.S. Const. Amend. IV. Under the exclusionary rule, evidence can-

not be used against a defendant in a criminal trial where that evi-

dence was obtained through an encounter with police that violated

the Fourth Amendment. United States v. Perkins, 348 F.3d 965, 969

(11th Cir. 2003). “The proponent of a motion to suppress has the

burden of establishing that his own Fourth Amendment rights

were violated by the challenged search or seizure.” Rakas v. Illinois,

439 U.S. 128, 130 n.1 (1978).

A “‘search’ occurs when an expectation of privacy that soci-

ety is prepared to consider reasonable is infringed,” and a “‘seizure’

of property occurs when there is some meaningful interference

with an individual’s possessory interests in that property.” United

States v. Odoni, 782 F.3d 1226, 1237 (11th Cir. 2015) (citation omit-

ted). Because “[s]earches and seizures implicate two distinct inter-

ests: a privacy interest affected by a search, and a possessory

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interest affected by a seizure,” the search and seizure must be ana-

lyzed separately. Id. at 1237–38.

A traffic stop is a seizure within the meaning of the Fourth

Amendment. Perkins, 348 F.3d at 969. The Supreme Court has

held that “during a traffic stop an officer seizes everyone in the ve-

hicle, not just the driver.” Brendlin v. California, 551 U.S. 249, 255

(2007) (“[s]topping an automobile and detaining its occupants con-

stitute a ‘seizure’”) (citations omitted).

“‘[T]raditional or common law theories of property rights

do not automatically confer standing to challenge a search.’” United

States v. Hall, 716 F.2d 826, 829 (11th Cir. 1983) (citation omitted).

When challenging a search on Fourth Amendment grounds, the

defendant “must establish both a subjective and an objective expec-

tation of privacy,” with the subjective component requiring “that

a person exhibit an actual expectation of privacy,” and the objective

component requiring “that the privacy expectation be one that so-

ciety is prepared to recognize as reasonable.” United State v. King,

509 F.3d 1338, 1341 (11th Cir. 2007) (quotations omitted). Courts

consider a variety of circumstances in assessing the reasonableness

of a privacy expectation, including: (1) whether the defendant had

ownership rights; (2) whether he had a possessory interest in the

place searched; (3) whether he had the right to exclude others from

the place searched; (4) whether he had exhibited a subjective ex-

pectation that it would remain free from governmental invasion;

(5) whether he took normal precautions to maintain privacy; and

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8 Opinion of the Court 22-12938

(6) whether he was legitimately in the place searched. See United

States v. Pitt, 717 F.2d 1334, 1337–38 (11th Cir. 1983).

Here, the district court denied Lewis’s motion to suppress

evidence obtained from two separate vehicles based on a finding

that Lewis lacked standing to challenge the traffic stop of one vehi-

cle, the U-Haul van, and the search of the other vehicle, the GMC

Yukon SUV. It did not err.

As for the traffic stop conducted on the U-Haul, Lewis

lacked standing to challenge it. Lewis’s coconspirator Darrell

Flowers was the person in the U-Haul at the time of the traffic stop;

Lewis was not an occupant nor was he even detained during the

stop, and thus, he was not subjected to a seizure within the mean-

ing of the Fourth Amendment. See Brendlin, 551 U.S. at 255; Perkins,

348 F.3d at 969. So even though Lewis’s name was on the U-Haul

rental agreement, Flowers was the one driving it at the relevant

time and Lewis did not establish how the traffic stop meaningfully

interfered with his possessory interest in it. Rakas, 439 U.S. at 130

n.1; Odoni, 782 F.3d at 1237–38. 1

Nor did the district court err by finding that Lewis lacked

standing to challenge the search of the Yukon. To begin with,

Lewis was permitted to drive the Yukon, but Flowers was the

1 To the extent Lewis intended to challenge the district court’s ruling that the

search of the U-Haul was lawful, he did not prominently raise this issue on

appeal. Rather, he only mentions that the search of the U-Haul was unlawful

in one sentence without supporting arguments or authority, so we decline to

consider this issue. See Sapuppo, 739 F.3d at 681.

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22-12938 Opinion of the Court 9

person listed on the rental agreement, not Lewis. Pitt, 717 F.2d at

1337–38. Further, as the record reflects, Lewis lacked the right to

exclude others from the Yukon because another coconspirator, Ri-

cardo Webb, who was a cook at Lewis’s restaurant, showed up

with a key fob to access the Yukon after Lewis left it parked in the

public parking lot. Id. And while Lewis was seen taking counter-

surveillance measures before he left the Yukon at a shopping cen-

ter, he then left it parked and unoccupied for hours before Webb

arrived to gain access to it. As a result, Lewis’s movements indi-

cated that he did not take normal precautions to maintain privacy

and he did not have a subjective expectation that the Yukon would

remain free from governmental invasion. Id. Further, Lewis was

also not in or around the Yukon at the time of the search, and thus,

he was not legitimately in the place searched. Id.

For these reasons, the district court did not err in holding

that Lewis lacked standing to contest the traffic stop conducted on

the U-Haul and the search of the Yukon, and we need not address

the merits of either challenge.

III.

We similarly find no merit to Lewis’s claim that the district

court erred in denying his motion for judgment of acquittal be-

cause there was insufficient evidence to establish that he knowingly

and intentionally conspired and aided and abetted others to possess

with intent to distribute cocaine and marijuana. “It is not necessary

that the evidence exclude every reasonable hypothesis of inno-

cence or be wholly inconsistent with every conclusion except that

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10 Opinion of the Court 22-12938

of guilt, provided that a reasonable trier of fact could find that the

evidence established guilt beyond a reasonable doubt.” United

States v. Calderon, 127 F.3d 1314, 1324 (11th Cir. 1997) (quotations

omitted). “In other words, the question is whether reasonable

minds could have found guilt beyond a reasonable doubt, not

whether reasonable minds must have found guilt beyond a reason-

able doubt.” United States v. Ellisor, 522 F.3d 1255, 1271 (11th Cir.

2008). In conducting sufficiency review, we will not consider testi-

mony incredible as a matter of law unless it cannot, on its face, be

believed, like where the witness could not have observed certain

events or they are contrary to the laws of nature. United States v.

Thompson, 422 F.3d 1285, 1291 (11th Cir. 2005).

To convict a defendant of possession of a controlled sub-

stance with intent to distribute under 21 U.S.C. § 841(a)(1), the gov-

ernment had to establish three elements: (1) knowledge; (2) posses-

sion; and (3) intent to distribute. United States v. Camacho, 233 F.3d

1308, 1317 (11th Cir. 2000). “To prove guilt under a theory of aid-

ing and abetting, the [g]overnment must prove: (1) the substantive

offense was committed by someone; (2) the defendant committed

an act which contributed to and furthered the offense; and (3) the

defendant intended to aid in its commission.” Id.

To sustain a conviction for conspiracy to distribute drugs in

violation of 21 U.S.C. § 846, the government must prove that: (1)

an agreement existed between two or more people to distribute

the drugs; (2) that the defendant at issue knew of the conspiratorial

goal; and (3) that he knowingly joined or participated in the illegal

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venture. Reeves, 742 F.3d at 497. “[P]articipation in a criminal con-

spiracy need not be proved by direct evidence; a common purpose

or plan may be inferred from a development and collocation of cir-

cumstances.” Id. (quotations omitted).

Additionally, “where there are repeated transactions be-

tween participants buying and selling large quantities of illegal

drugs, that may be sufficient to find the participants were involved

in a single conspiracy to distribute those drugs.” Id. A defendant

“may be found guilty of participating in a conspiracy if the evidence

demonstrates that he was aware of its essential nature, even if he

did not know all its details or played only a minor role in the overall

scheme.” Id. (quotations omitted). Thus, “[t]he government need

not prove that a defendant participated in every stage of the con-

spiracy or had direct contact with each of the other alleged co-con-

spirators.” Id. at 498.

Here, the district court did not err in denying Lewis’s mo-

tion for judgment of acquittal because a reasonable trier of fact

could find him guilty of conspiring to possess and aiding and abet-

ting the possession of marijuana and cocaine with intent to distrib-

ute. At trial, among other things, coconspirator Flowers testified

that Lewis had approached Flowers to ask him to transport items

for Lewis from Phoenix to Tampa, offering to pay Flowers $25,000,

which was about 5 times the going rate; that Lewis had paid Flow-

ers three times to use his company to ship drugs from Phoenix to

Tampa; that Lewis had been at the warehouse in Phoenix when

the drugs arrived and Lewis had picked up the drugs after they had

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12 Opinion of the Court 22-12938

arrived at the warehouse in Tampa; that the first two shipments

contained marijuana but the third shipment also included cocaine,

five kilograms of which Lewis had instructed Flowers to give or

“front” to another man, Roger Grace, who was to pay Lewis di-

rectly; and that, on February 24, 2017, Lewis and Flowers had taken

the marijuana and cocaine from Flowers’s Tampa warehouse and

loaded it into the U-Haul van, Flowers had driven away in the van

and had been stopped by the police. Thereafter, he called Lewis

and told him that he had been pulled over and still had all the stuff

in his van. See United States v. Broadwell, 870 F.2d 594, 601 (11th Cir.

1989) (“Testimony of a co-conspirator, even if uncorroborated, is

sufficient to support a conviction.”).

Aside from Flowers’s inculpatory testimony, the jury also

learned that law-enforcement officers recovered 15 kilograms of

cocaine and 444 kilograms of marijuana from the U-Haul van, that

Lewis had returned to the warehouse after Flowers had been

stopped and removed another ten kilograms of cocaine, and that

the total value of the drugs recovered exceeded $3 million. In ad-

dition, the jury heard that Lewis had rented the U-Haul van in

which the officers found the large quantities of drugs, and that

Webb, the cook from Lewis’s restaurant, had shown up to retrieve

the Yukon.

In short, Lewis’s transaction with Flowers and Grace

evinced an illegal agreement between at least two people to distrib-

ute the drugs. Further, the large quantity of drugs involved

strongly supports the inference that the defendants intended to

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22-12938 Opinion of the Court 13

distribute those drugs. See, e.g., United States v. Cruickshank, 837

F.3d 1182, 1189 (11th Cir. 2016). The jury further heard how Lewis

had absconded after being arrested and placed on bail. In fact,

Lewis was a fugitive for four years, a fact from which the jury could

readily find his consciousness of guilt. See United States v. Gonzalez,

834 F.3d 1206, 1217 (11th Cir. 2016) (“[T]he jury also was entitled

to consider evidence of Gonzalez’s pretrial flight and five years as

a fugitive as substantive evidence of her consciousness of guilt of

the charged conspiracies.”).

Thus, the record contained more than enough evidence that

Lewis had the requisite knowledge, possession, and intent to dis-

tribute, to support his conviction for possession of controlled sub-

stances with intent to distribute, 21 U.S.C. § 841(a)(1) and (b)(1)(B);

that Lewis committed an act that contributed to and furthered the

possession with intent to distribute a controlled substance and that

Lewis intended to aid in the commission of the crime, to support

his conviction for aiding and abetting, 21 U.S.C. § 841(b)(1)(A) and

(a)(1); and that Lewis had entered into an agreement between at

least two people to distribute the drugs, that he knew of the goal

of the agreement and that he knowingly joined or participated in

the illegal venture, to support his conviction for conspiracy, 21

U.S.C. § 846.

Finally, to the extent Lewis argues that Flowers’s testimony

should not be given great weight due to credibility issues, we are

required to draw reasonable credibility choices in favor of the jury’s

verdict. Thompson, 422 F.3d at 1291. Further, because Flowers

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14 Opinion of the Court 22-12938

testified about events that he participated in or otherwise observed,

his testimony was not contrary to the laws of nature. Id. All in all,

the evidence supported Lewis’s convictions beyond a reasonable

doubt, and the district court properly denied his motion for judg-

ment of acquittal.

IV.

Next, we are unconvinced by Lewis’s argument that the dis-

trict court abused its discretion by denying his claim of a marital-

communications privilege during his ex-wife’s testimony. It is well

established that the marital-communications privilege prevents the

disclosure of private communications between spouses in the con-

fidence of the marital relationship. Trammel v. United States, 445

U.S. 40, 51 (1980). However, this privilege generally applies only

to “utterances, and not to acts.” Pereira v. United States, 347 U.S. 1,

6 (1954).

Here, Lewis was not entitled to the marital-communications

privilege when his ex-wife testified. As the record reflects, Lewis’s

ex-wife Dawn did not testify to any “utterances” exchanged be-

tween her and Lewis during their marriage; rather, she testified

about a photo he sent her during their marriage after he had ab-

sconded. The district court did not clearly err by finding that

Dawn’s testimony about Lewis’s photo was not a communication

covered by the privilege. Regardless, even if her testimony had

been erroneously admitted, her statement that Lewis’s photo indi-

cated that he was in Mexico was harmless -- DEA Agent Danny

Fletcher also testified that Lewis left the “Middle District of

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22-12938 Opinion of the Court 15

Florida” and was eventually found in Mexico in October 2021. See

Rivera, 944 F.2d at 1567, 1569; Langford, 647 F.3d at 1323.

V.

Nor can we say that the district court abused its considerable

discretion by admitting into evidence cocaine and cash recovered

during Lewis’s arrest in violation of Federal Rule of Evidence

404(b). Under this rule, evidence of other crimes, wrongs, or acts

is not admissible to prove the character of a person in order to show

action in conformity therewith. Fed. R. Evid. 404(b)(1). But this

evidence “may be admissible for another purposes, such as proving

motive, opportunity, intent, preparation, plan, knowledge, iden-

tity, absence of mistake, or lack of accident.” Id. 404(b)(2).

Moreover, “[c]riminal acts by a coconspirator, if committed

as part of or in furtherance of the general conspiracy, are not ‘other

act’ evidence and are properly admissible to demonstrate the scope

of the conspiracy.” United States v. Collins, 779 F.2d 1520, 1532 (11th

Cir. 1986). “Such intrinsic evidence may be excluded nonetheless

if its probative value ‘is substantially outweighed by the danger of

unfair prejudice.’” United States v. Fortenberry, 971 F.2d 717, 721

(11th Cir. 1992) (citing Fed. R. Evid. 403). The district court’s “dis-

cretion to exclude evidence under Rule 403 is narrowly circum-

scribed.” Id. (quotations omitted). “Rule 403 is an extraordinary

remedy which should be used only sparingly since it permits the

trial court to exclude concededly probative evidence,” and “[t]he

balance under the Rule, therefore, should be struck in favor of ad-

missibility.” Id. (quotations omitted). The term “unfair prejudice,”

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16 Opinion of the Court 22-12938

means “an undue tendency to suggest decision on an improper ba-

sis.” United States v. Kent, 93 F.4th 1213, 1220 (11th Cir. 2024) (quo-

tations omitted).

Here, the district court did not abuse its discretion by admit-

ting into evidence cocaine and cash that was recovered when Lewis

was arrested. For starters, the superseding indictment charged

Lewis with offenses that began no later than February 24, 2017. As

a result, the cocaine and cash found on June 6, 2017 were evidence

of the ongoing conspiracy that Lewis was charged with commit-

ting, and that evidence did not qualify as extrinsic evidence under

Rule 404(b). Fed. R. Evid. 404(b); Collins, 779 F.2d at 1532. Addi-

tionally, the cocaine and cash were part of the charged conspiracy

and relevant to proving the extent of Lewis’s role in the conspiracy,

so we cannot say that the probative value was substantially out-

weighed by the danger of unfair prejudice. See Fed. R. Evid. 403;

Fortenberry, 971 F.2d at 721; Reeves, 742 F.3d at 497.

VI.

We are also unpersuaded by Lewis’s argument that the dis-

trict court erred by admitting a certificate from the Florida Depart-

ment of Revenue into evidence because the certificate contained

testimonial hearsay in violation of the Confrontation Clause of the

Sixth Amendment. The Confrontation Clause provides that “[i]n

all criminal prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him.” U.S. Const. Amend.

VI. The Confrontation Clause “bars the admission of the testimo-

nial statements of a witness who did not appear at trial unless the

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22-12938 Opinion of the Court 17

witness was unavailable and the defendant had a prior opportunity

to cross-examine him or her.” Wilson, 788 F.3d at 1316 (quotations

omitted); see also Crawford v. Washington, 541 U.S. 36, 53–54 (2004).

“Testimony is a solemn declaration or affirmation made for

the purpose of establishing or proving some fact.” Wilson, 788 F.3d

at 1316 (quotations omitted). “Testimonial statements are ones

that declarants would reasonably expect to be used prosecutori-

ally.” Id. (quotations omitted). Therefore, “statements that were

made under circumstances which would lead an objective witness

reasonably to believe that the statement would be available for use

at a later trial[] fall within the core class of testimony.” Id. (quota-

tions omitted).

“Certain statements by their nature are not testimonial,” like

business records. Id. (quotations omitted and alterations adopted).

“Business and public records are generally admissible absent con-

frontation not because they qualify under an exception to the hear-

say rules, but because -- having been created for the administration

of an entity’s affairs and not for the purpose of establishing or prov-

ing some fact at trial -- they are not testimonial.” Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 324 (2009). Therefore, regardless of

whether they qualify as business or official records, when state-

ments are specifically prepared for use at a defendant’s trial, those

statements are testimony against the defendant, and the declarant

of those statements is subject to confrontation. See id. Further-

more, the defendant’s ability to subpoena the declarant “is no sub-

stitute for the right of confrontation.” Id.

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18 Opinion of the Court 22-12938

Even if a defendant’s Sixth Amendment rights were violated,

we are required to consider whether the error was harmless.

United States v. Gari, 572 F.3d 1352, 1362 (11th Cir. 2009). “The cor-

rect inquiry is whether, assuming that the damaging potential of

the cross-examination were fully realized, a reviewing court might

nonetheless say that the error was harmless beyond a reasonable

doubt.” Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). “In mak-

ing this determination, factors to be considered are: the importance

of the uncross-examined statements in the prosecution’s case,

whether those statements were cumulative, the presence or ab-

sence of evidence corroborating or contradicting the testimonial

statement on material points, the extent of cross-examination oth-

erwise permitted, and the overall strength of the prosecution’s

case.” Gari, 572 F.3d at 1363. We ask “whether the minds of an

average jury would have found the prosecution’s case less persua-

sive if the erroneously admitted evidence had been excluded.” Id.

(quotations omitted).

At Lewis’s trial, the government introduced a certificate

from the custodian of records for the Florida Department of Reve-

nue attesting that the custodian did not find that Lewis had re-

ported any wage and hour information to the department. This

search had been performed in response to a subpoena from DEA

Agent Fletcher to investigate Lewis’s income. So, as the govern-

ment concedes, it amounted to testimonial hearsay. See Melendez-

Diaz, 557 U.S. at 324; Wilson, 788 F.3d at 1316.

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22-12938 Opinion of the Court 19

But even so, the error in admitting the certificate was harm-

less beyond a reasonable doubt. See Van Arsdall, 475 U.S. at 684;

Gari, 572 F.3d at 1362. At trial, Lewis was able to cross-examine

Agent Fletcher and establish that business owners like himself

would not necessarily receive wages because they could have un-

reportable sources of income. This is especially true for Lewis,

who admits he was a restaurant owner whose income was derived

from business profits rather than wages.

Moreover, even if the certificate had been excluded, we’ve

already detailed ample other evidence of Lewis’s guilt -- including

that Lewis had arranged to ship drugs from Phoenix to Tampa

three times, had helped load 15 kilograms of cocaine and 444 kilo-

grams of marijuana into the U-Haul van he had rented, and had

placed 10 kilograms of cocaine in the Yukon before abandoning it.

All told, witness testimony established that Lewis had thousands of

dollars to pay his coconspirator Flowers for drug shipments, as well

as thousands of dollars found in cars connected to Lewis’s involve-

ment in the conspiracy. Accordingly, the evidence presented in the

certificate was not essential to the government’s case, and its ad-

mission amounted, at most, to harmless error.

VII.

We likewise are unconvinced by Lewis’s claim that the dis-

trict court clearly erred at sentencing when it found that he was an

organizer or leader of the conspiracy for the purposes of applying

a 4-level enhancement pursuant to U.S.S.G. § 3B1.1(a). The Guide-

lines prescribe a four-level enhancement for a defendant who was

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20 Opinion of the Court 22-12938

an organizer or leader of a criminal activity that involved either (1)

five or more participants or (2) was otherwise extensive. U.S.S.G.

§ 3B1.1(a). In other words, the enhancement may only be applied

if the government proves the defendant was both an organizer or a

leader and the offense involved five or more participants or was

otherwise extensive. United States v. Martinez, 584 F.3d 1022, 1026

(11th Cir. 2009). The government carries the burden to prove the

existence of an aggravating role by a preponderance of the evi-

dence. Shabazz, 887 F.3d at 1222.

Section 3B1.1 requires “evidence that the defendant exerted

some control, influence or decision-making authority over another

participant in the criminal activity.” Martinez, 584 F.3d at 1026. We

examine whether a defendant was an organizer or leader, as com-

pared to a manager or supervisor, by considering the following:

“(1) exercise of decision making authority, (2) the nature of partic-

ipation in the commission of the offense, (3) the recruitment of ac-

complices, (4) the claimed right to a larger share of the fruits of the

crime, (5) the degree of participation in planning or organizing the

offense, (6) the nature and scope of the illegal activity, and (7) the

degree of control and authority exercised over others.” Id. (quo-

tations omitted). There is no requirement that all these circum-

stances be present for the enhancement to apply. Id. However,

the district court should determine that the facts the government

proves, including the undisputed facts from the presentence inves-

tigation report (“PSI”), should establish, standing alone or in con-

cert, at least one of the seven factors. See id. at 1027–28.

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22-12938 Opinion of the Court 21

A “participant” is “a person who is criminally responsible for

the commission of the offense, but need not have been convicted.”

United States v. Zitron, 810 F.3d 1253, 1261 (11th Cir. 2016) (quota-

tions omitted) (citing U.S.S.G. § 3B1.1). In assessing whether an

individual is “criminally responsible,” we may consider any of his

acts directed by the defendant that were “part of the same course

of conduct or common scheme or plan as the offense of convic-

tion.” Id. at 1261–62 (quotations omitted). It is enough if an indi-

vidual knowingly participates in the criminal conduct. Id. at 1262.

The defendant may also be considered one of the participants in

counting the number of participants involved in the offense. See

United States v. Duperval, 777 F.3d 1324, 1337 (11th Cir. 2015).

Here, the district court did not clearly err by finding that

Lewis was an organizer or leader of a conspiracy for the purposes

of applying a 4-level enhancement pursuant to § 3B1.1(a). First, the

court did not clearly err by finding that the conspiracy involved five

or more participants because there was evidence that at least five

named participants -- Flowers, Lewis, Webb, Grace, and another

man named “Friday” -- and several other unnamed men were in-

volved in the extensive shipments of the drugs from Phoenix to

Tampa. Zitron, 810 F.3d at 1261–62; Duperval, 777 F.3d at 1337.

Second, the district court did not clearly err by finding that

Lewis was an organizer or leader because he exerted some deci-

sion-making authority over at least one participant -- Flowers. Mar-

tinez, 584 F.3d at 1026–28. The evidence showed that: (1) Lewis

recruited Flowers by approaching Flowers and offering to pay him

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22 Opinion of the Court 22-12938

$25,000 to use his warehouse and route for the shipments; (2)

Lewis paid Flowers $18,000 for the first shipment and he paid Flow-

ers $25,000 for the second shipment; and (3) Lewis also instructed

Flowers to remove five kilograms of cocaine to give to Grace and

collected $20,000 from Webb on Lewis’s behalf. Thus, the district

court did not clearly err by finding that Lewis was an organizer or

leader of a conspiracy for the purposes of applying a 4-level en-

hancement pursuant to § 3B1.1(a). Shabazz, 887 F.3d at 1222.

VIII.

We also find no merit to Lewis’s claim -- raised for the first

time on appeal -- that the district court plainly erred by applying a

2-level enhancement for obstruction of justice pursuant to U.S.S.G.

§ 3C1.1. The Guidelines provide that a defendant’s offense level

can be enhanced by two levels if: (1) he willfully obstructed or im-

peded, or attempted to obstruct or impede, the administration of

justice with respect to an investigation, prosecution, or sentencing

of his instant offense; and (2) his obstructive conduct related to his

offense of conviction and any relevant conduct, or a closely related

offense. Guevara, 894 F.3d at 1311; U.S.S.G. § 3C1.1. Additionally,

“a failure to object to allegations of fact in a PSI admits those facts

for sentencing purposes.” United States v. Wade, 458 F.3d 1273, 1277

(11th Cir. 2006). Similarly, the “failure to object to a district court’s

factual findings precludes the argument that there was error in

them.” Id.

Here, the district court did not plainly err by applying the 2-

level enhancement for obstruction of justice based on Lewis

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22-12938 Opinion of the Court 23

absconding from pretrial supervision. Notably, Lewis did not ob-

ject to the facts in the PSI relaying that he absconded from pretrial

supervision on September 21, 2017, and that he failed to appear for

judicial proceedings until he was arrested four years later on Au-

gust 31, 2021. Therefore, Lewis admitted to those facts for sentenc-

ing purposes, precluding any argument that there was error in

them. Id. In any event, there is no controlling precedent from the

Supreme Court or our Court establishing that it was error to apply

an obstruction of justice enhancement when the defendant ab-

sconds from pretrial supervision. See Guevara, 894 F.3d at 1311;

Ramirez-Flores, 743 F.3d at 822; U.S.S.G. § 3C1.1. Thus, Lewis has

failed to establish that the district court plainly erred in this respect.

IX.

Finally, Lewis has not established that his total sentence of

240 months’ imprisonment is substantively unreasonable. In re-

viewing the “‘substantive reasonableness of [a] sentence imposed

under an abuse-of-discretion standard,’” we consider the “‘totality

of the circumstances.’” Pugh, 515 F.3d at 1190 (quoting Gall v.

United States, 552 U.S. 38, 51 (2007)). The district court must im-

pose a sentence “sufficient, but not greater than necessary to com-

ply with the purposes” listed in 18 U.S.C. § 3553(a). 2 The court

2 The § 3553(a) factors include: (1) the nature and circumstances of the offense

and the history and characteristics of the defendant; (2) the need for the sen-

tence imposed 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 the

sentence imposed to afford adequate deterrence; (4) the need to protect the

public; (5) the need to provide the defendant with educational or vocational

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24 Opinion of the Court 22-12938

must consider all of the § 3553(a) factors, but it may give greater

weight to some factors over others -- a decision that is within its

sound discretion. United States v. Rosales-Bruno, 789 F.3d 1249, 1254

(11th Cir. 2015). The district court is not required to discuss each

of the § 3553(a) factors, and an acknowledgement that it has con-

sidered the § 3553(a) factors will suffice. United States v. Turner, 474

F.3d 1265, 1281 (11th Cir. 2007).

However, a sentence may be substantively unreasonable

when a court unjustifiably relies on any single § 3553(a) factor, fails

to consider pertinent § 3553(a) factors, bases the sentence on im-

permissible factors, or selects the sentence arbitrarily. Pugh, 515

F.3d at 1191–92. A sentence that suffers from one of these symp-

toms is not per se unreasonable; rather, we must examine the total-

ity of the circumstances to determine the sentence’s reasonable-

ness. Id. at 1192. “[W]e will not second guess the weight (or lack

thereof) that the [court] accorded to a given [§ 3553(a)] factor . . .

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) (quotations and emphasis omitted). We

will vacate a sentence only if we are left with the “definite and firm”

conviction that the district court committed a clear error of judg-

ment in weighing the § 3553(a) factors by arriving at a sentence that

training or medical care; (6) the kinds of sentences available; (7) the Sentencing

Guidelines range; (8) the pertinent policy statements of the Sentencing Com-

mission; (9) the need to avoid unwarranted sentencing disparities; and (10) the

need to provide restitution to victims. 18 U.S.C. § 3553(a).

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22-12938 Opinion of the Court 25

is outside the range of reasonable sentences dictated by the facts of

the case. Pugh, 515 F.3d at 1191 (quotations omitted).

The party challenging the sentence bears the burden of

demonstrating that the sentence is unreasonable in light of the rec-

ord, the factors listed in 18 U.S.C. § 3553(a), and the substantial def-

erence afforded sentencing courts. Rosales-Bruno, 789 F.3d at 1256.

We ordinarily expect a sentence within the Guidelines range to be

reasonable, and a sentence imposed well below the statutory max-

imum penalty is an indicator of a reasonable sentence. See United

States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).

Here, Lewis’s 240-month sentence was not substantively un-

reasonable. The district court expressly said that it considered the

§ 3553(a) factors during Lewis’s sentencing and explained that it

weighed his difficult upbringing and the statements from his family

against the nature and circumstances of his offenses, including the

large quantity of drugs involved, the fact that he had absconded,

and his refusal to admit responsibility. In so doing, the court

demonstrated that it properly considered the relevant § 3553(a) fac-

tors, and to the extent it gave less weight to the mitigating factors,

it was well within the court’s discretion to do so. Furthermore,

Lewis’s total sentence of 240 months’ imprisonment was at the low

end of the 235-to-293-month Guidelines range and well below the

statutory maximum of life imprisonment. Gonzalez, 550 F.3d at

1324. On this record, he has not shown that his sentence is sub-

stantively unreasonable.

AFFIRMED.