# United States v. Daniel A. Rodriguez

> Court of Appeals for the Eleventh Circuit · August 25, 2021

URL: https://www.frixlaw.com/law-library/cases/4857751

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** August 25, 2021
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Nature of suit:** NEW
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4857751

## How later opinions describe it (automated extraction)

- holding that knowing participation in a conspiracy can be shown through proof of surrounding circumstances, such as acts committed by the defendant that furthered the purpose of the conspiracy
- stating that this issue must be raised by a collateral attack in district court, such as an action under 28 U.S.C. § 2255

## Opinion text

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 19-12451
Non-Argument Calendar
________________________

D.C. Docket No. 1:17-cr-20904-UU-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DANIEL A. RODRIGUEZ,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
________________________

(August 25, 2021)

Before JORDAN, GRANT, and LAGOA, Circuit Judges.

PER CURIAM:
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Daniel Rodriguez (“Rodriguez”) appeals his conviction and his 400-month

sentence for conspiracy to possess with intent to distribute a controlled substance

and controlled substance analogues, in violation of 21 U.S.C. § 846, conspiracy to

commit money laundering, in violation of 18 U.S.C. § 1956(h), possession with

intent to distribute a controlled substance analogue, in violation of 21 U.S.C.

§§ 802(32)(A), 841(a)(1), 841(b)(1)(C), and 813, possession with intent to distribute

a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), and 18

U.S.C. § 2, and money laundering, in violation of 18 U.S.C. § 1957. Rodriguez

raises eleven issues on appeal, which we will address in turn.

I.

Rodriguez argues that the district court erred when it accepted his guilty plea

because there was an insufficient factual basis for his plea. Specifically, he argues

that the proffer merely mirrored the indictment and did not contain the essential

elements of the charges against Rodriguez.

Normally, we review a district’s court’s decision to accept a guilty plea for

abuse of discretion and review for clear error the district court’s factual findings that

the requirements of Federal Rule of Criminal Procedure 11 were satisfied. United

States v. Houser, 70 F.3d 87, 89 (11th Cir. 1995). Under Rule 11(b), the district

court “must determine that there is a factual basis for the plea” before entering a

judgment of guilt. Fed. R. Crim. P. 11(b)(3). The standard for evaluating a challenge

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to the factual basis for a guilty plea is simply whether the trial court was presented

with evidence such that “a court could reasonably find that the defendant was

guilty.” United States v. Rodriguez, 751 F.3d 1244, 1255 (11th Cir. 2014) (quoting

United States v. Owen, 858 F.2d 1514, 1516–17 (11th Cir.1988)). However, when

a defendant does not object to a Rule 11 violation in the district court, we will review

for plain error only. Id. at 1251. In order to demonstrate this plain error, the

defendant must demonstrate that: (1) there was error; (2) the error was plain; and (3)

the error affected his substantial rights. United States v. Puentes-Hurtado, 794 F.3d

1278, 1285-86 (11th Cir. 2015) If these elements are satisfied, we may reverse the

error only if it “seriously affect[s] the fairness, integrity, or public reputation of

judicial proceedings.” Id.

Here, we conclude that the district court did not commit either clear error or

plain error when it determined that there was a sufficient factual basis for

Rodriguez’s guilty plea because the factual proffer provided sufficient evidence for

the district court to reasonably find that Rodriguez was guilty of the charges in the

superseding indictment. See Rodriguez, 751 F.3d at 1255; see also Puentes-

Hurtado, 794 F.3d at 1287 (holding that knowing participation in a conspiracy can

be shown through proof of surrounding circumstances, such as acts committed by

the defendant that furthered the purpose of the conspiracy). Accordingly, we affirm

the district court’s acceptance of the guilty plea.

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II.

Rodriguez argues that the district court erred when it denied his motion to

withdraw his guilty plea because he had alleged sufficient facts to justify such a

withdrawal. Rodriguez argues that his change of plea was unknowing and

involuntary because the government had used information in violation of Kastigar 1

and his attorney had provided ineffective assistance of counsel.

We review a district court’s denial of a request to withdraw a guilty plea for

abuse of discretion. United States v. Freixas, 332 F.3d 1314, 1316 (11th Cir. 2003).

“It is well settled, however, that there is no absolute right to withdraw a guilty plea

prior to imposition of a sentence.” United States v. Buckles, 843 F.2d 469, 471 (11th

Cir. 1988). The decision to grant a withdrawal is left to the sound discretion of the

district court and we may only reverse if a denial was arbitrary or unreasonable. Id.

Under Rule 11, a defendant may withdraw his guilty plea if he can show a “fair and

just reason” for requesting the withdrawal. Fed. R. Crim. P. 11(d)(2)(B).

In determining whether a defendant has met his burden of showing a “fair and

just reason” to withdraw his guilty plea, the district court may consider the totality

of circumstances surrounding the plea, including: “(1) whether close assistance of

counsel was available; (2) whether the plea was knowing and voluntary; (3) whether

judicial resources would be conserved; and (4) whether the government would be

1
Kastigar v. United States, 406 U.S. 441 (1972).
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prejudiced if the defendant were allowed to withdraw his plea.” Buckles, 843 F.2d

at 471-72 (internal citation omitted). If the first two factors weigh against a

defendant, the district court need not give “considerable weight” or “particular

attention” to the remaining factors. See United States v. Gonzalez-Mercado, 808

F.2d 796, 801 (11th Cir. 1987).

When analyzing a challenge under Rule 11, there is a strong presumption that

statements made during the plea colloquy are true. See United States v. Medlock, 12

F.3d 185, 187 (11th Cir. 1994). A defendant may not withdraw his guilty plea based

on dissatisfaction with an anticipated sentence and we may consider the timing of a

defendant’s motion to withdraw his guilty plea to determine the true motive for

withdrawal. See Gonzalez-Mercado, 808 F.2d at 801.

We will “not generally consider claims of ineffective assistance of counsel

raised on direct appeal where the district court did not entertain the claim nor develop

a factual record.” United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002);

see also United States v. Souder, 782 F.2d 1534, 1539-40 (11th Cir. 1986) (stating

that this issue must be raised by a collateral attack in district court, such as an action

under 28 U.S.C. § 2255). An exception exists in rare instances where the record is

sufficiently developed to allow review on direct appeal. United States v. Tyndale,

209 F.3d 1292, 1294 (11th Cir. 2000).

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As an initial matter, we will not consider any of Rodriguez’s claims of

ineffective assistance of counsel because the record is not sufficiently developed to

address this issue on direct appeal. See Bender, 290 F.3d at 1284. Here, the district

court did not abuse its discretion when it denied Rodriguez’s motion to withdraw his

guilty plea because Rodriguez failed to present a “fair and just reason” for the

withdrawal of his guilty plea. See Buckles, 843 F.2d at 471-72. Moreover, the

district court’s decision to deny the withdrawal of the guilty plea is neither arbitrary

nor unreasonable. See id. During the plea colloquy, Rodriguez swore under oath

that he was satisfied with the representation and advice of his attorneys, that he had

a full opportunity to discuss the charges, that it was his intention to plead guilty to

all the charges, that he knew his sentence might be more severe than anticipated, and

that he had reviewed and signed the factual proffer. Rodriguez’s claim that ADB-

FUBINACA was not a controlled substance or controlled substance analogue is not

supported by the record, as he conceded these facts in the factual proffer and the

record evidence demonstrates that ADB-FUBINACA was added to the list of

schedule I controlled substances on April 10, 2017, and before then, it was

substantially similar to AB-FUBINACA, a controlled substance. Accordingly, we

affirm the district court’s denial of the motion to withdraw the guilty plea.

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III.

Rodriguez argues that the district court erred when it did not grant his motions

for recusal because the recusal order from 1994 was still applicable and,

alternatively, the same reasons for recusal in 1994 still exist in this case because

Judge Ungaro served on the Southern District of Florida at the same time as Judge

Highsmith.

“Generally, a voluntary, unconditional guilty plea waives all nonjurisdictional

defects in the proceedings.” United States v. Patti, 337 F.3d 1317, 1320 (11th Cir.

2003). The denial of a motion for recusal pursuant to 28 U.S.C. § 455(a) is a “pretrial

defect which is sublimated within a guilty plea” such that a defendant waives the

right to appeal the denial when he has entered an unconditional guilty plea. Id. at

1322 Section 455(a) provides that: “Any justice, judge, or magistrate judge of the

United States shall disqualify himself in any proceeding in which his impartiality

might reasonably be questioned.” 28 U.S.C. § 455(a). When we review a § 455(a)

motion, the standard “is whether an objective, disinterested, lay observer fully

informed of the facts underlying the grounds on which recusal was sought would

entertain a significant doubt about the judge’s impartiality . . . and any doubts must

be resolved in favor of recusal.” Patti, 337 F.3d at 1322 (internal quotation marks

and citations omitted).

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Here, we conclude that the plain wording of the 1994 recusal order which

Rodriguez seeks to enforce demonstrates that the order applied only to the

proceeding for which it was issued. Moreover, Rodriguez waived any argument

concerning his § 455(a) motion when he entered a voluntary and unconditional

guilty plea in the district court. See Patti, 337 F.3d at 1320. Accordingly, we affirm

the district court’s denial of the motions to recuse.

IV.

Rodriguez argues that the district court erred when it denied his motion to

suppress evidence because the government learned of the location of the storage

unit through a breach of attorney-client privilege and the government engaged in

coercive behavior to procure consent from his attorney to search the storage unit.

He also argues that the government lacked probable cause to search the storage

unit and no exigent circumstances existed at the time of the search and seizure.

Generally, the “district court’s denial of a motion to suppress is a mixed

question of law and fact.” United States v. Barsoum, 763 F.3d 1321, 1328 (11th

Cir. 2014). Accordingly, “we review a district court’s factual findings for clear

error and review its application of law to the facts de novo.” Id. However, a

defendant waives the right to challenge a district court’s ruling on a motion to

suppress after he enters an unconditional guilty plea. United States v. McCoy, 477

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F.2d 550, 551 (5th Cir. 1973); see also United States v. Charles, 757 F.3d 1222,

1227 n.4 (11th Cir. 2014).

Here, Rodriguez waived the right to appeal the district court’s denial of his

motion to suppress evidence when he entered a voluntary and unconditional guilty

plea. See McCoy, 477 F.2d at 551. Accordingly, we affirm the district court’s

denial of the motion to suppress.

V.

Rodriguez argues that the district court erred in applying the two-level

enhancement under U.S.S.G. § 2D1.1(b)(15)(A) because the record clearly

demonstrates that he did not maintain the storage facility for the purpose of

manufacturing or distributing a controlled substance.

We review for clear error a district court’s findings of fact which underlie its

determination that a sentencing enhancement applies. United States v. Duperval,

777 F.3d 1324, 1331 (11th Cir. 2015). Thus, we will review a district court’s

determination of whether a defendant maintained a premises for the manufacture or

distribution of drugs for clear error. United States v. George, 872 F.3d 1197, 1205

(11th Cir. 2017). A district court’s factual finding is clearly erroneous when, after a

review of the evidence, we are left with “a definite and firm conviction a mistake

has been made.” United States v. Dimitrovski, 782 F.3d 622, 628 (11th Cir. 2015).

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Section 2D1.1(b)(12) of the 2016 Sentencing Guidelines provides that: “If the

defendant maintained a premises for the purpose of manufacturing or distributing a

controlled substance, increase by 2 levels.” U.S.S.G. § 2D1.1(b)(12) (2016). This

two-level increase applies to a defendant “who knowingly maintains a premises . . .

for the purpose of manufacturing or distributing a controlled substance, including

storage of a controlled substance for the purpose of distribution.” Id. 2D1.1, cmt.

n.17. When determining whether the defendant “maintained” the premises, courts

should consider: (1) “whether the defendant held a possessory interest in (e.g.,

owned or rented) the premises;” and (2) “the extent to which the defendant controlled

access to, or activities at, the premises.” Id. The Sentencing Guidelines further

provide that:

Manufacturing or distributing a controlled substance need not be the
sole purpose for which the premises was maintained, but must be one
of the defendant’s primary or principal uses for the premises, rather
than one of the defendant’s incidental or collateral uses for the
premises. In making this determination, the court should consider
how frequently the premises was used by the defendant for
manufacturing or distributing a controlled substance and how
frequently the premises was used by the defendant for lawful
purposes.
Id.

Here, the district court did not clearly err when it determined that Rodriguez

maintained the storage unit for the purpose of manufacturing or distributing a

controlled substance because the government provided sufficient evidence to

support a finding that one of the primary purposes of the storage unit was to store
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ADB-FUBINACA before distribution in the drug trafficking scheme. See U.S.S.G.

§ 2D1.1, cmt. n.17. Reviewing the evidence on the record, one is not left with a

“definite and firm conviction a mistake has been made.” See Dimitrovski, 782 F.3d

at 628. Accordingly, we affirm the district court’s determination that the

enhancement was applicable.

VI.

Rodriguez argues that the two-level enhancement under U.S.S.G. §

2D1.1(b)(15)(A), for using friendship and affection to involve another individual in

the illegal conspiracy, is inapplicable because the mere existence of a romantic

relationship is insufficient to support the enhancement and there was no evidence

that he actively played on Lucia Mendez’s (“Mendez”) affection or emotions to get

her to participate in the drug scheme.

We review for clear error a district court’s findings of fact which underlie its

determination that a sentencing enhancement applies. Duperval, 777 F.3d at 1331.

A district court’s factual finding is clearly erroneous when, after a review of the

evidence, we are left with “a definite and firm conviction a mistake has been made.”

Dimitrovski, 782 F.3d at 628. “The government bears the burden of establishing the

facts necessary to support a sentencing enhancement by a preponderance of the

evidence.” Id. The preponderance-of-the-evidence standard “simply requires the

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trier of fact to believe that the existence of a fact is more probable than its

nonexistence.” United States v. Trainor, 376 F.3d 1325, 1331 (11th Cir. 2004).

The 2016 Sentencing Guidelines provide for a two-level sentencing

enhancement if a defendant received an adjustment under § 3B1.1 and:

(A) (i) the defendant used fear, impulse, friendship, affection, or
some combination thereof to involve another individual in the illegal
purchase, sale, transport, or storage of controlled substances, (ii) the
individual received little or no compensation from the illegal
purchase, sale, transport, or storage of controlled substances, and (iii)
the individual had minimal knowledge of the scope and structure of
the enterprise[.]

U.S.S.G. § 2D1.1(b)(15)(A).

We afford substantial deference to the factfinder’s credibility determinations.

United States v. Lewis, 674 F.3d 1298, 1303 (11th Cir. 2012). We will accept a

district court’s credibility determination “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).

Here, the district court did not commit a clear error when it determined that

Rodriguez used friendship and affection to involve Mendez in the drug trafficking

conspiracy because there was sufficient evidence on the record to support the district

court’s finding. Mendez testified that she had never been involved in any criminal

activities before entering her relationship with Rodriguez and that she believed

Rodriguez used their relationship and psychological manipulation to involve her in

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the conspiracy. Importantly, the district court also found Mendez’s testimony to be

credible and without contradiction, and we will not overturn that determination

because there is no evidence that this finding was so improbable that no reasonable

factfinder could accept it. See Ramirez-Chilel, 289 F.3d at 749. Accordingly, we

affirm the district court’s determination that the enhancement was applicable.

VII.

Rodriguez argues that the district court erred when it included the weight of

the carrier medium in its calculation of the weight of the controlled substance

because it leads to the absurd result of disproportionate sentences. He also argues

that the district court failed to consider treating the carrier medium in this case in the

same manner that the sentencing guidelines treat blotter paper when calculating the

weight of LSD. Moreover, he argues that the carrier medium shouldn’t be included

in the weight calculation because the heavy cardstock paper is inert, not a cutting

agent, its weight can consistently be determined and separated from the drug, and it

does not expand the amount of drug sold nor exasperate the actual substance.

Unless otherwise specified, the weight of a controlled substance set forth in

U.S.S.G. § 2D1.1(c) refers to the weight of any “mixture or substance” containing a

detectable amount of the controlled substance. U.S.S.G. § 2D1.1(c)(A). Generally,

the weight of a “mixture” or “substance” includes the carrier medium that contains

the relevant controlled substance. United States v. Camacho, 261 F.3d 1071, 1073

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(11th Cir. 2001) (citing Chapman v. United States, 500 U.S. 453, 461-68 (1991)).

The 2016 Sentencing Guidelines provide that a “[m]ixture or substance does not

include materials that must be separated from the drug itself before the drug can be

used.” U.S.S.G. § 2D1.1, cmt. n.1 (2016).

Our precedent provides that, when calculating the weight of a “mixture or

substance” containing a detectable amount of a controlled substance, we follow the

market-oriented approach set forth in Chapman. Griffith v. United States, 871 F.3d

1321, 1335 (11th Cir. 2017) (citing Chapman, 500 U.S. at 461). Thus, while

unusable portions or waste products are not considered, “[t]he entire weight of drug

mixtures which are usable in the chain of distribution should be considered in

determining a defendant’s sentence.” Id.

Here, the district court did not commit a clear error by including the weight

of the carrier medium when it calculated the weight of the controlled substance. The

government provided evidence that the paper impregnated with ADB-FUBINACA,

which was utilized in the drug trafficking operation, was either smoked or ingested

by inmates to take the drug. Rodriguez provided no evidence that inmates or non-

inmates could separate out the ADB-FUBINACA from the impregnated paper in

order to take the drug. Following the market-oriented approach we have adopted,

because the carrier paper was neither a waste product nor unusable and was used in

the chain of distribution, the weight of the carrier paper should be included in the

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calculation of the weight of the ADB-FUBINACA in this case. See Griffith, 871

F.3d at 1335. Accordingly, we affirm the district court’s inclusion of the carrier

medium in the calculation of the drug weight.

VIII.

Rodriguez argues that the district court erred when it denied his Kastigar

claims because the district court improperly credited the government agent’s

testimony that he had discovered the allegedly defective evidence through

independent means. We review a Kastigar claim deferentially and will affirm the

district court’s decision unless it is clearly erroneous. United States v. Nyhuis, 8

F.3d 731, 741 (11th Cir. 1993). Under clear error review, we will affirm the district

court’s decision “so long as it is plausible in light of the record reviewed in its

entirety.” United States v. Ladson, 643 F.3d 1335, 1341 (11th Cir. 2011) (citation

omitted). In Kastigar, the Supreme Court held that when the government wishes to

prosecute a defendant who has given self-incriminating testimony under a grant of

immunity, to avoid a Fifth Amendment violation, the prosecution is prohibited from

“using the compelled testimony in any respect” that would “lead to the infliction of

criminal penalties on the witness.” Kastigar v. United States, 406 U.S. 441, 453

(1972). When we are presented with a Kastigar claim, we must “determine whether

any of the evidence used against the defendant was in any way derived from his

compelled immunized testimony.” United States v. Hill, 643 F.3d 807, 877 (11th

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Cir. 2011) Moreover, the government bears the burden of demonstrating that all of

the evidence it obtained and used against the defendant was untainted by immunized

testimony. Id.

Here, we conclude that the district court’s decision that there was no Kastigar

violation was not clearly erroneous because the government provided sufficient

evidence that it obtained the allegedly tainted evidence through independent means.

See Hill, 643 F.3d at 877. Because the district court’s decision is plausible in light

of the record, we will not reverse. See Ladson, 643 F.3d at 1341. Accordingly, we

affirm the district court’s determination that there was no Kastigar violation.

IX.

Rodriguez argues that the district court committed a clear and plain error

because it randomly decided what to include in the drug amount and engaged in

gross speculation and improper guess work when it determined that he was

responsible for more than 1,000 kilograms of marijuana.

We review a district court’s calculation of drug quantity for clear error.

United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005). Thus, we will

only disturb the district court’s quantity approximation if we are left with a “definite

and firm conviction that a mistake has been committed.” United States v. Almedina,

686 F.3d 1312, 1315 (11th Cir. 2012). We have held that if the amount of drugs

seized does not reflect the scale of the offense, the district court must approximate

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the drug quantity attributable to the defendant. United States v. Dixon, 901 F.3d

1322, 1349 (11th Cir. 2018). “In estimating the quantity, the trial court may rely on

evidence demonstrating the average frequency and amount of a defendant’s drug

sales over a given period of time.” United States v. Reeves, 742 F.3d 487, 506 (11th

Cir. 2014). “This determination may be based on fair, accurate, and conservative

estimates of the drug quantity attributable to a defendant, but it cannot be based on

calculations of drug quantities that are merely speculative.” Id. (alteration adopted)

(quoting Almedina, 686 F.3d at 1316).

Here, the district court did not clearly err when it calculated the amount of

drugs that were attributable to Rodriguez for purposes of sentencing. Because the

government had only seized a portion of the mailed packages that constituted the

drug trafficking operation, the district court had to approximate the drug quantity

attributable to Rodriguez. See Dixon, 901 F.3d at 1349. Moreover, the district court

was permitted to rely on evidence that demonstrated the average frequency and

amount of packages and drugs that Rodriguez distributed from October 2016 to

February 9, 2018. See Reeves, 742 F.3d at 506.

Reviewing the district court’s calculation determination, we are not left with

a definite and firm conviction that a mistake was committed. See Almedina, 686

F.3d at 1315. The calculation was based on using the average weight of intercepted

packages and extrapolating that average to unseized packages that were verified.

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Additionally, the district court’s assumption that less than 15% of the unseized

Barnes & Noble packages contained ADB-FUBINACA appears to be a fair and

conservative estimate of the drug quantity. See Reeves, 742 F.3d at 506.

Accordingly, we affirm the district court’s calculation of the drug amount

attributable to Rodriquez.

X.

Rodriguez argues that the district court abused its discretion when it issued an

order which prohibited both parties from filing motions because that blanket

prohibition kept him from being able to present a full defense. Moreover, the

prohibition undermined the fairness and integrity of the proceedings.

When a defendant fails to object to an error before the district court, we review

the argument for plain error. United States v. Hall, 314 F.3d 565, 566 (11th Cir.

2002). Under this standard of review, the appellant must prove: (1) an error

occurred; (2) the error was plain; and (3) the error affected substantial rights. United

States v. DiFalco, 837 F.3d 1207, 1221 (11th Cir. 2016) (“An error is plain where it

is ‘clear’ or ‘obvious.’”). If these three conditions are satisfied, we can only notice

the forfeited error if “the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Id. at 1221 (citation omitted). “The plain error

test is ‘difficult to meet’ and places ‘a daunting obstacle before the appellant,’” such

that we should only notice a forfeited error “in those circumstances in which a

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miscarriage of justice would otherwise result.” Id. (citations omitted). The

defendant bears the burden of establishing that the plain error prejudiced him by

affecting his substantial rights. United States v. Brown, 586 F.3d 1342, 1345 (11th

Cir. 2009). To establish prejudice on plain error review, the defendant must show

there is a reasonable probability that, but for the error, a different outcome would

have occurred; and a reasonable probability is a probability “sufficient to undermine

confidence in the outcome.” United States v. Garcia, 906 F.3d 1255, 1267 (11th

Cir. 2018)

District courts possess broad discretion to manage their dockets. United

States v. McCutcheon, 86 F.3d 187, 190 (11th Cir. 1996). A defendant must show

prejudice to establish that the district court abused this discretion. See id. However,

this Court will not reverse an alleged constitutional error which is ultimately

harmless. United States v. Roy, 855 F.3d 1133, 1167-68 (11th Cir. 2017).

Here, the district court did not commit a plain error by issuing the order which

limited the filing of motions by both parties because, even if we were to assume that

the district court committed a plain error, Rodriguez cannot demonstrate that the

error affected a substantial right or that the error seriously affected the fairness,

integrity, or public reputation of judicial proceedings. See DiFalco, 837 F.3d at

1221-22. Rodriguez filed over 30 motions between the issuance of the order and the

imposition of his sentence and the district court granted or denied many of these

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motions on the merits. Furthermore, only four of Rodriguez’s motions were

stricken, based on filing defects. Thus, Rodriguez cannot demonstrate that he

suffered any harm or prejudice from the district court’s order, nor can he show that

there was a reasonable possibility that if the order had not been issued that the

outcome of this proceeding would have been altered. See Garcia, 906 F.3d at 1267.

Accordingly, we find that the district court did not commit a reversible error.

XI.

Rodriguez argues that the district court clearly erred when it adopted the 1:167

ratio for tetrahydrocannabinol (“THC”) to convert the weight of ADB-FUBINACA

to an equivalent weight of marijuana because ADB-FUBINACA is not substantially

similar to THC.

Because the identification of the “most closely related substance” is a finding

of fact, we review the district court’s determination for clear error. See Duperval,

777 F.3d 1331. When determining the most closely related substance under the

Guidelines, the district court must consider “to the extent practicable,” the following

factors:

(A) Whether the controlled substance not referenced in this guideline
has a chemical structure that is substantially similar to a controlled
substance referenced in this guideline.

(B) Whether the controlled substance not referenced in this guideline
has a stimulant, depressant, or hallucinogenic effect on the central
nervous system that is substantially similar to the stimulant,

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USCA11 Case: 19-12451 Date Filed: 08/25/2021 Page: 21 of 21

depressant, or hallucinogenic effect on the central nervous system of a
controlled substance referenced in this guideline.

(C) Whether a lesser or greater quantity of the controlled substance
not referenced in this guideline is needed to produce a substantially
similar effect on the central nervous system as a controlled substance
referenced in this guideline.

U.S.S.G. § 2D1.1, cmt. n.6 (2016). Under U.S.S.G § 2D1.1, THC is converted to an

equivalent weight of marijuana using a 1:167 ratio. Id. cmt. n.8(D).

Here, we conclude that the district court did not commit clear error by

determining that ADB-FUBINACA was most closely related to THC and that the

corresponding 1:167 ratio should be utilized. The district court’s determination is

sufficiently supported by expert testimony and evidence. Furthermore, the evidence

provided by Rodriguez does not establish that the district court committed a clear

error but merely provides a plausible alternate finding. See United States v.

Saingerard, 621 F.3d 1341, 1343 (11th Cir. 2010) (“Where there are two permissible

views of the evidence, the factfinder’s choice between them cannot be clearly

erroneous.”). Accordingly, we affirm the district court’s determination that ADB-

FUBINACA is most closely related to THC and its adoption of the 1:167 conversion

ratio.

AFFIRMED.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4857751. Public record. Not legal advice.