The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 29, 2005
No. 05-10665 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00142-CR-T-23-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILMAR PENA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 29, 2005)
Before TJOFLAT, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Wilmar Pena appeals his convictions and 151-month sentence imposed for
conspiracy to possess with intent to distribute one or more kilograms of a mixture
containing heroin, in violation of 21 U.S.C. §§ 841(a)(1), 864, possession with
intent to distribute one or more kilograms of a mixture containing heroin, in
violation of 21 U.S.C. § 841(b)(1)(A)(i), conspiracy to import into the United
States one or more kilograms of a mixture containing heroin, in violation of
21 U.S.C. §§ 952(a), 963, and importing into the United States one or more
kilograms of a mixture containing heroin, in violation of 21 U.S.C. § 952(a).
I.
Pena first argues on appeal that the evidence was not sufficient to support
any of his four convictions. Pena does not dispute that the substantive offenses
occurred; rather, he disputes that there was sufficient evidence to show his
knowledge and participation in the conspiracy to import the drugs, his knowledge
and intent to possess the heroin, and his participation in the importation. We
review the sufficiency of the evidence de novo, viewing the evidence and all
reasonable inferences in favor of the government and the jury’s verdict. United
States v. Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005). Under this standard, we
are satisfied that sufficient evidence was presented to support Pena’s convictions.
The evidence sufficiently supports a conclusion that Pena agreed with Jairo
Gentil to enter into the drug smuggling conspiracy to import and possess heroin
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with intent to distribute, and that he knowingly and voluntarily participated in it by
traveling from Miami to Tampa and going to a designated hotel room with the
intent of taking possession of the heroin and transporting it back to Miami. The
evidence showed that he (1) bought a cell phone in a fake name with money Gentil
gave him; (2) traveled from Miami to Tampa, the port of entry, with the intention
of picking up the delivery and take it back to Miami to hold for Gentil; (3) was to
be reimbursed by Gentil for all of his expenses; (4) was told that the delivery was
coming from Colombia, where Gentil was living; (5) received the phone call from
Rogers to set up the delivery on the same phone that Gentil had paid for; and (6)
showed up at the site where the delivery was supposed to take place with the
intention of picking up the delivery
Although Pena testified that he believed that he was going to transport
clothing and purses and had no knowledge of the heroin, the jury was entitled to
discredit this testimony and to infer his knowledge from Rogers’s testimony that he
was supposed to deliver the drugs to the man who he would call after getting the
phone number from his supplier, and that the delivery was supposed to take place
at the hotel were Pena eventually showed up after being called. It was within the
province of the jury, after reviewing the videotapes, audiotapes, and transcripts of
the interaction and conversations between Pena and Rogers, as well as the
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testimony of law enforcement officers who observed Pena conducting counter-
surveillance at the hotel before going to the hotel room as well as Pena’s actions in
the hotel room to accept the government’s version that Pena was discussing the
heroin when speaking with Rogers about the delivery, and to reject Pena’s
testimony that he was talking about clothing and purses. The evidence supporting
Pena’s conspiracy convictions also supported his convictions for the substantive
offenses of importation and possession of heroin with the intent to distribute.
II
Next, Pena argues that the district court erred in refusing to declare a mistrial
when a witness testified that “somebody” went to his house “with a gun” two
weeks after he had spoken to Pena, inferring, Pena argues, that Pena had threatened
him and his family. We review a district court’s denial of a motion for a mistrial
for an abuse of discretion. United States v. Wright, 392 F.3d 1269, 1274 (11th
Cir. 2004), cert. denied, 125 S.Ct. 1751 (2005). “Typically, a defendant is entitled
to a grant of mistrial only upon a showing of substantial prejudice.” United States
v. Ettinger, 344 F.3d 1149, 1161 (11th Cir. 2003). “If a district court issues a
curative instruction, we will reverse only if the evidence is so highly prejudicial as
to be incurable by the trial court’s admonition. United States v. Diaz, 248 F.3d
1065, 1101 (11th Cir. 2001) (quotation and citation omitted).
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In this case, the court instructed the jury that the testimony was non-
responsive to any question the witness had been asked, and the witness clarified in
his testimony that he had no reason to connect Pena to the man with the gun. On
this record, we cannot say that the district court abused its discretion in denying
Pena’s request for a mistrial.
III
Next, Pena argues that the district court abused its discretion by instructing
the jury that they should base their verdict on consideration of all the evidence
when the jury requested a copy of Pena’s testimony during deliberations. He
argues that the instruction would have been appropriate at the time the transcript of
the testimony was actually given to the jury, but that giving the instruction prior to
providing the transcripts suggested to the jury that the other evidence and
testimony should be considered rather than Pena’s testimony.
We review the propriety of the trial court’s jury instructions de novo.
United States v. Drury, 396 F.3d 1303, 1313 (11th Cir.), cert. denied, No. 04-
1438, (U.S. Oct. 3, 2005). “[We] will not reverse a conviction on the basis of a
jury charge unless the issues of law were presented inaccurately, or the charge
improperly guided the jury in a substantial way as to violate due process.” United
States v. Anderson, 326 F.3d 1319, 1330-1331 (11th Cir. 2003) (quotation and
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citation omitted). We do not find, on this record, that the jury was substantially
misguided by the jury instructions as they were given.
IV
Next, Pena argues that his sentence should be vacated pursuant to United
States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).Because
the district court applied the Guidelines as advisory, and a preponderance of the
evidence showed that 13.2 kilograms of heroin was involved in the crimes, the
district court did not err in using this factual finding to support its Guidelines
calculation.
V
Next, Pena argues that he was entitled to a reduction in his Guidelines
calculation for his minor role in the offense. The district court is obligated to
consult and correctly calculate the Guidelines even though under Booker, the
Guidelines are merely advisory. United States v. Crawford, 407 F.3d 1174, 1178
(11th Cir. 2005). Post-Booker, we continue to review the district court’s
application of the Guidelines as we did pre-Booker. United States v. Ellis, 419
F.3d 1189, 1192 (11th Cir. 2005). We review the district court’s findings
regarding whether a defendant qualifies for a minor-role adjustment under the
Guidelines for clear error. United States v. Ryan, 289 F.3d 1339, 1348 (11th Cir.
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2002). The defendant has the burden of establishing his role by a preponderance of
evidence. Id. “So long as the basis of the trial court’s decision is supported by the
record and does not involve a misapplication of a rule of law, we believe that it
will be rare for an appellate court to conclude that the sentencing court’s
determination is clearly erroneous.” United States v De Varon, 175 F.3d 930, 945
(11 th Cir. 1999). Under this standard, we cannot say that the district court clearly
erred on this record.
VI
Lastly, Pena argues that his sentence was unreasonable because his co-
defendant, Rogers, who pleaded guilty to one count of conspiracy to import heroin
with intent to distribute, was more culpable than he was and received a lesser
sentence. He recognizes that this Court has held that disparate sentences among
co-defendants is not an appropriate ground for departure under the Guidelines, but
argues that since the Booker decision, this factor should be considered by the
district court under 18 U.S.C. § 3553(a)(2)(A).
In determining whether a sentence is reasonable, the court should be guided
by the factors in 18 U.S.C. § 3553(a). Booker, 125 S.Ct. at 765-66; United States
v. Winingear, No. 05-11198, slip op. at 3516 (11th Cir. Aug. 30, 2005). “These
factors include the available sentences, the applicable Guideline range, the nature
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and circumstances of the offense, and the need for the sentence to reflect the
seriousness of the offense, promote respect for the law, provide just punishment for
the offense, and provide the defendant with needed medical care. 18 U.S.C.
§ 3553(a).” Winingear, No. 05-11198, slip op. at 3516. Another factor listed in
§ 3553(a) is “the need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct[.]” 18 U.S.C.
§ 3553(a)(6). Although the court must be guided by these factors, we have held
that “nothing in Booker or elsewhere requires the district court to state on the
record that it has explicitly considered each of the § 3553(a) factors or to discuss
each of the § 3553(a) factors.” United States v. Scott, No. 05-11843, manuscript
op. at 11-12 (11th Cir. Sept. 27, 2005).
We are satisfied that the record supports the reasonableness of Pena’s 151-
month sentence. The district court calculated the Guidelines range correctly,
treated the Guidelines range as advisory only, and expressly stated that it had
considered all of the factors in 18 U.S.C. § 3553(a), imposing a sentence that was
relatively minimal in comparison to the statutory maximum life sentence.
AFFIRMED
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