United States v. David Lee Berry

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-13352

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID LEE BERRY,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Northern District of Alabama

D.C. Docket No. 5:19-cr-00480-LCB-HNJ-18

____________________

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2 Opinion of the Court 21-13352

Before WILSON, BRANCH, and BRASHER, Circuit Judges.

PER CURIAM:

David Berry appeals his convictions and 210-month

sentence for conspiracy to distribute and possess with intent to

distribute 50 grams or more of methamphetamine, in violation of

21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A), (b)(1)(B), and (b)(1)(C), and

the unlawful use of a communications facility, in violation of 21

U.S.C. § 843(b). He argues that (1) venue in the Northern District

of Alabama was improper, and his counsel’s failure to challenge

venue constituted ineffective assistance of counsel; (2) there was

insufficient evidence to support his conspiracy conviction; (3) the

district court abused its discretion in admitting hearsay testimony;

and (4) the district court erred in finding that he was ineligible for

safety-valve relief at sentencing. After review, we affirm.

I. Background

Berry and 25 co-conspirators were indicted in the Northern

District of Alabama on one count of conspiracy to distribute and

possess with intent to distribute 50 grams or more of

methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and

(b)(1)(A), (b)(1)(B), and (b)(1)(C) (“Count One”). Berry was also

indicted on one count of the unlawful use of a communication

facility in furtherance of the conspiracy offense, in violation of 21

U.S.C. § 843(b) (“Count Eleven”).

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At trial, the government presented testimony from multiple

witnesses, including some of Berry’s co-conspirators. As part of an

investigation into an influx of methamphetamine in Alabama, law

enforcement obtained wiretaps on several phones, including two

of co-conspirator Eric Sanders’s phones. Co-conspirator Anthony

Skelton, who pleaded guilty to conspiracy to distribute and possess

with intent to distribute 50 grams or more of methamphetamine,

testified that he had known Berry for many years, and he saw Berry

deliver methamphetamine to a mutual friend’s house. Skelton also

obtained methamphetamine from Berry regularly. Berry obtained

his methamphetamine from Sanders. Berry gave Skelton a pre-

paid cell phone with Sanders’s contact information programmed

into it, so that Skelton could “get meth” from Sanders. Skelton also

saw Sanders deliver methamphetamine to Berry’s house on at least

two occasions, and Berry sold Skelton some of the

methamphetamine for anywhere between $350 to $600 an ounce.

A recording of a phone call between Skelton and Sanders

was played for the jury. Skelton testified that in the call, he asked

Sanders how much a pound of methamphetamine would cost, and

Sanders stated it would be $5,000. Skelton and another co-

conspirator, Roger Lay, had a buyer who had agreed to pay $6,200

for the methamphetamine, netting a total $1,200 profit, which they

planned to split between the two of them. They met Sanders and

purchased the pound of methamphetamine, but they were stopped

and arrested by law enforcement after the sale.

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Sanders, who also pleaded guilty to conspiracy to distribute

and to possess with intent to distribute 50 grams or more of

methamphetamine, testified as follows. Since 2017, Sanders has

made his living selling methamphetamine, and he kept the drugs at

his house in Town Creek, Alabama. Sanders sold Berry

methamphetamine “a bunch of times.” Sanders would drive from

Alabama to a market in Tennessee near Berry’s home to make the

exchange—later, they began meeting at Berry’s home. He sold

Berry two to four ounces of methamphetamine about twice a

week. Sometimes, Sanders would also “front” Berry

methamphetamine if Berry did not have the money to pay for the

drugs at the time of delivery.

The government then presented several recorded phone

calls between Berry and Sanders. In one phone call, Berry asked

Sanders for two ounces of methamphetamine. On the call, Berry

stated that his sales had slowed down and people were

“undercutting him” and selling methamphetamine for less. Two

other calls in which Berry asked Sanders for four and then three

ounces of methamphetamine, respectively, were played for the

jury. Sanders confirmed that Berry introduced Skelton to him so

that Skelton could buy methamphetamine from Sanders.

When Sanders learned that Skelton and Lay had been

arrested after he sold them a pound of methamphetamine in

February 2019, he called Berry. Berry advised Sanders to not sell

any more methamphetamine to Skelton. A few days later, Berry

sent a text message to Sanders asking for a half pound of marijuana

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and four ounces of meth. Sanders called Berry in response to the

text, and they arranged for Sanders to drop off the drugs in the back

of an old abandoned house in Tennessee near where Berry lived.

Berry expressed concern that the police might be watching him. In

a phone call on the day that Sanders was to deliver the drugs to the

house, Berry explained that he did not have the money for the

marijuana and he had left Sanders money for the

methamphetamine only. Sanders agreed to leave the marijuana

because of his relationship with Berry, and Berry assured Sanders

that he would send Sanders money for the marijuana.

Sanders continued to sell approximately two to four ounces

of methamphetamine a week to Berry until Sanders’s arrest in

October 2019. Sanders confirmed that one person could not have

personally consumed the amount of methamphetamine he sold to

Berry on a regular basis, and he noted that Berry talked about his

customers during their calls and introduced Sanders to other

customers.

Finally, Captain Timothy Beckham with the Wayne

County, Tennessee, Sheriff’s Office testified. In February 2019,

Beckham and other officers conducted surveillance on an old house

where a suspected delivery of drugs was to be made. He observed

Berry arrive at the house and pick up the drugs. The officers left

after they observed Berry pick up the drugs. On their route back

to the office, they observed Berry in a bank parking lot pulled up

next to another truck which had its hood open. The other truck

belonged to Kyle Haggard. Beckham pulled into the lot and

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Haggard indicated that he was having car trouble, but it was fixed

now. Beckham then left, but, shortly thereafter, Haggard called

one of the officers in Beckham’s car. The call was audible over the

car’s Bluetooth device. Beckham testified that Haggard said:

“that’s not what it looked like.” 1

Following Beckham’s testimony, the government rested, as

did Berry. Berry did not move for a judgment of acquittal. The

jury found Berry guilty as charged. Berry then moved for a new

trial and a post-verdict judgment of acquittal, arguing that the

jury’s verdict was against the great weight of the evidence and that

the district court committed reversible error in admitting the

hearsay testimony of Haggard. The district court denied his

motion.

Prior to sentencing, the United States Probation Office

prepared a presentence investigation report (PSI), in which it

determined that Berry did not satisfy the safety-valve provision of

1 Berry raised a hearsay objection to Beckham testifying as to what Haggard

said on the call. The government explained that the statement was being

offered to show Haggard’s state of mind only, not for the truth of the matter

asserted. Berry argued that Haggard’s state of mind was not relevant, and,

even it was, it was unduly prejudicial and should be excluded under Federal

Rule of Evidence 403. The court overruled the objection, but it agreed to

provide a limiting instruction. The district court instructed the jury that

“[y]ou are about to hear the statement from the witness, and you can use as

evidence of Kyle Haggard’s state of mind, but not that Kyle Haggard’s

statement was true.”

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U.S.S.G. § 5C1.2(a) 2 because, although he had made two proffers

to the government, he had not truthfully provided all information

and evidence that he had related to the unlawful use of a

communications facility count. Berry filed a motion for safety-

valve relief under 18 U.S.C. § 3553(f), asserting in relevant part that

he satisfied all of the criteria and that he had “told all he knows

about the crime through two proffers.”

At sentencing, the district court adopted the PSI and

determined that Berry’s advisory guidelines range was 188 to 235

months’ imprisonment. Berry renewed his request for safety-valve

relief under § 3553(f). Counsel also read a statement that Berry had

prepared in which he stated that he was a “drug user and an addict”

and that the “only reason [he] got caught up in this trade was [his]

personal need for drugs.” He emphasized that he had no criminal

history and had been a “law-abiding citizen” for most of his life. He

stated that he was “full of regret” and apologized to his family for

his actions.

2 U.S.S.G. § 5C1.2(a) permits a district court to disregard an applicable

statutory minimum sentence when imposing a sentence if the defendant

meets certain criteria. This guidelines provision cross-references 18 U.S.C.

§ 3553(f), which is the statutory safety-valve provision. One of the

requirements a defendant must satisfy is that he “has truthfully provided to

the Government all information and evidence the defendant has concerning

the offense or offenses that were part of the same course of conduct or of a

common scheme or plan.” 18 U.S.C. § 3553(f)(5). As relevant here, Berry

faced a ten-year statutory minimum sentence for the conspiracy count and a

maximum of life imprisonment.

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The government opposed Berry’s safety-valve request,

arguing that:

[Berry] certainly did not tell us everything he knew

about the crimes in this case. [He] [d]idn’t ever

mention anything about the events on Count Eleven,

which he was convicted of.

If you will recall, that involved the phone call where

he asked Eric Sanders to come to his house and go

across the street to the little abandoned house from

their property and put the methamphetamine inside

the house.

And there was some discussion about his customer

had not left the money for the marijuana, and so did

Eric Sanders want to bring the marijuana, or, you

know, did he not want to travel back to Hunstville

with it in there, because it’s dangerous to drive with

it in the car. And Eric said, no, I will go ahead and

bring it to you. And [Berry] said, Well, I will make

sure you . . . get paid for it. [He] [n]ever told us

anything about that in the proffers.

The government also emphasized that, even in his statement to the

court, Berry failed to be truthful about his conduct and denied

being a dealer. The government requested a within-guidelines

sentence.

The district court then sentenced Berry to total term of 210

months’ imprisonment, implicitly denying his request for safety

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valve relief. The district court emphasized that “the evidence at

trial was overwhelming that [Berry was] a drug dealer,” and that a

210-month sentence was appropriate in light of the § 3553(a)

sentencing factors. This appeal followed.

II. Discussion

A. Whether venue was proper in the Northern District of

Alabama

Berry argues that venue in the Northern District of Alabama

was improper because he lived in Tennessee, and the drug

transactions he participated in occurred in Tennessee. He

maintains that the government proffered no evidence that he

committed any overt act in Alabama, and his counsel rendered

constitutionally ineffective assistance by failing to object to venue.

A defendant has a Sixth Amendment right “to be tried in the

district in which the crime was committed.” United States v. Little,

864 F.3d 1283, 1287 (11th Cir. 2017) (quotations omitted).

“However, a defendant waives an objection to venue by failing to

raise it before trial, subject to the exception that objecting at the

close of evidence is soon enough if the indictment alleges an

incorrect venue and the defendant was not aware of that defect

until the government presented its case.” United States v. Greer,

440 F.3d 1267, 1271 (11th Cir. 2006).

Berry did not object to venue at any point prior to, or during,

the trial. Therefore, he waived any venue challenge. But, even if

the issue was not waived, venue in the Northern District of

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Alabama was proper. When an offense is committed in more than

one district, the offense can be prosecuted “in any district in which

such offense was begun, continued, or completed.” 18 U.S.C.

§ 3237(a). “In a conspiracy case, venue is proper in any district

where an overt act was committed in furtherance of the

conspiracy.” United States v. Smith, 918 F.2d 1551, 1557 (11th Cir.

1990). Here, the crime of conspiracy to distribute and possess with

intent to distribute 50 grams or more of methamphetamine

occurred in both the Northern District of Alabama and parts of

Tennessee. Sanders stored the drugs in his home in the Northern

District of Alabama, and then he transported them to Tennessee to

sell to Berry and other members of the conspiracy. Thus, venue

was proper in either district. See United States v. Lewis, 676 F.2d

508, 511 (11th Cir. 1982) (“[W]here a criminal conspirator commits

an act in one district which is intended to further a conspiracy by

virtue of its effect in another district, the act has been committed

in both districts and venue is properly laid in either.”).3

Accordingly, Berry is not entitled to relief.

B. Whether sufficient evidence supports Berry’s conspiracy

conviction

Berry argues that his conspiracy conviction amounts to a

manifest injustice because the evidence was insufficient to support

his conviction. He maintains that he purchased drugs for personal

3 Because we conclude that venue was proper, Berry’s claim that his counsel

was ineffective for failing to object to venue necessarily fails.

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use from Sanders and the government did not present any evidence

of an agreement to distribute drugs. Additionally, he argues that

there was no evidence that he knew of, participated in, or

otherwise benefitted from the drug transaction between Sanders

and Lay and Skelton, such that this transaction could not serve as

the basis for his conspiracy conviction.

Generally, “[w]e review the sufficiency of the evidence de

novo, viewing the evidence in the light most favorable to the

government and accepting all reasonable inferences in favor of the

verdict.” United States v. Tagg, 572 F.3d 1320, 1323 (11th Cir. 2009)

(quotations omitted). However, where, as here, the defendant fails

to challenge the sufficiency of the evidence by moving for a

judgment of acquittal at trial, “we may reverse the conviction only

to prevent a manifest miscarriage of justice. This standard requires

the appellate court to find that the evidence on a key element of

the offense is so tenuous that a conviction would be shocking.” Id.

(quotations omitted).

A conspiracy conviction requires the government to

prove the following: (1) [an] agreement between two

or more persons to achieve an unlawful objective;

(2) knowing and voluntary participation in that

agreement by the defendant; and (3) an overt act in

furtherance of the agreement. The existence of an

agreement may be established by proof of an

understanding between the participants to engage in

illicit conduct, and the typical proof required to prove

legitimate contracts is not required. This proof may

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be provided through circumstantial evidence, such as

inferences from the conduct of the alleged

participants or from circumstantial evidence of a

scheme.

United States v. Achey, 943 F.3d 909, 916 (11th Cir. 2019)

(quotations and internal citations omitted). “[A] simple buyer-

seller controlled substance transaction does not, by itself, form a

conspiracy.” Id. at 917. However, “a conspiracy can be found if

the evidence allows an inference that the buyer and seller knew the

drugs were for distribution instead of merely understanding their

transactions to do no more than support the buyer’s personal drug

habit.” Id. (quotations omitted). An agreement may also be

inferred “when the evidence shows a continuing relationship that

results in the repeated transfer of illegal drugs to the purchaser” or

“where the amount of drugs allows an inference of a conspiracy to

distribute drugs.” Id. (quotations omitted); see also United States

v. Brown, 587 F.3d 1082, 1089 (11th Cir. 2009) (“[A]s is well-

established in this Circuit, where there are repeated transactions

buying and selling large quantities of illegal drugs, that is sufficient

evidence that the participants were involved in a conspiracy to

distribute those drugs in the market.”).

Here, the evidence was more than sufficient for a jury to

infer that a conspiracy existed based on the repeated drug

transactions between Berry and Sanders, the amount of drugs

transferred, and the recorded phone calls, in which Berry

occasionally referred to his customers and competitors who were

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“undercutting him” and selling methamphetamine for less.

Additionally, a jury could have inferred that a distribution

conspiracy existed based on the fact that Sanders occasionally

fronted Berry drugs without payment. See United States v.

Beasley, 2 F.3d 1551, 1560 (11th Cir. 1993) (noting that evidence

established more than a simple buyer-seller relationship where

evidence showed that the co-conspirator sometimes fronted drugs

to the defendant). The fact that Berry did not participate in the

drug transaction between Skelton, Lay, and Sanders is not relevant

because Berry is “liable for any act done by a co-conspirator in

furtherance of the conspiracy.” United States v. Grady, 18 F.4th

1275, 1283 n.4 (11th Cir. 2021) (quotations omitted). Accordingly,

Berry cannot show that his conspiracy conviction resulted in a

manifest miscarriage of justice.

C. Whether the district court erroneously admitted

hearsay testimony

Berry argues that the district court improperly admitted

Captain Beckham’s testimony regarding Haggard’s hearsay

statement “that’s not what it looked like.” 4 He maintains that,

although the government offered it to prove Haggard’s state of

mind, his state of mind was not relevant and the statement should

4 Berry indicates in his brief that Haggard said “[t]hat’s not what it appeared

to be.” However, at trial, Captain Beckham testified that Haggard said “that’s

not what it looked like.” For purposes of this opinion, we rely on the

statement as it appears in the record.

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have been excluded as unduly prejudicial. He maintains that the

district court’s limiting instruction did not cure any error because

Haggard’s statement suggested that Berry had a reputation as a

drug dealer, and the prejudice from such a comment affected his

substantial rights and constituted reversible error.

“We review a district court’s evidentiary rulings under an

abuse of discretion standard.” United States v. Green, 873 F.3d 846,

854 (11th Cir. 2017). “To the extent that the district court based its

determination on an interpretation of the Federal Rules of

Evidence, our review is de novo.” Id.

Hearsay is a statement, other than one made by the

declarant while testifying at trial, offered in evidence to prove the

truth of the matter asserted. Fed. R. Evid. 801(c). “Hearsay is

inadmissible unless the statement is not hearsay as provided by

Rule 801(d) or falls into one of the hearsay exceptions.” United

States v. Caraballo, 595 F.3d 1214, 1226 (11th Cir. 2010) (quotations

omitted). The state-of-mind hearsay exception provides that “[a]

statement of the declarant’s then-existing state of mind” is

admissible. Fed. R. Evid. 803(3). For a statement to be admissible

under this rule, however, the declarant’s statement of mind must

be relevant to an issue in the case. United States v. Jeri, 869 F.3d

1247, 1261 (11th Cir. 2017).

We will reverse an erroneous evidentiary ruling only if the

resulting error was not harmless. Id. In other words, “[e]videntiary

and other nonconstitutional errors do not constitute grounds for

reversal unless there is a reasonable likelihood that they affected

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the defendant’s substantial rights; where an error had no

substantial influence on the outcome, and sufficient evidence

uninfected by error supports the verdict, reversal is not

warranted.” United States v. Arbolaez, 450 F.3d 1283, 1290 (11th

Cir. 2006) (quotations omitted).

Even assuming arguendo that the district court erroneously

admitted Haggard’s statement, the error was harmless and does

not merit reversal. As detailed previously, the evidence against

Berry was significant. The jury heard recorded calls in which Berry

solicited and planned drug transactions, and it heard corroborating

testimony from some of his co-conspirators. Therefore, there is no

reasonable likelihood that the admission of Haggard’s lone

statement—“that’s not what it looked like”—had a substantial

influence on the jury’s verdict. Accordingly, Berry is not entitled

to relief on this claim.

D. Whether the district court erred in finding that Berry

was ineligible for safety-valve relief at sentencing

Berry argues that he met all of the criteria for eligibility

under the safety-valve provision in 18 U.S.C. § 3553(f), and that he

provided full disclosure of all he knew regarding the offenses in his

two proffers to the government.

“When reviewing the denial of safety-valve relief, we review

for clear error a district court’s factual determinations. We review

de novo the court’s legal interpretation of the statutes and

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sentencing guidelines.” United States v. Johnson, 375 F.3d 1300,

1301 (11th Cir. 2004) (internal citation omitted).

The safety-valve provision provides that, for an offense

under 21 U.S.C. 841, “the court shall impose a sentence pursuant

to [the Guidelines] . . . without regard to any statutory minimum

sentence, if the court finds at sentencing” that the defendant

satisfies five criteria. See 18 U.S.C. § 3553(f). One criterion is that

“not later than the time of the sentencing hearing, the defendant

has truthfully provided to the Government all information and

evidence the defendant has concerning the offense or offenses that

were part of the same course of conduct or of a common scheme

or plan.” Id. § 3553(f)(5). This factor is known as the “‘tell-all ’

provision: to meet its requirements, the defendant has an

affirmative responsibility to truthfully disclose to the government

all information and evidence that he has about the offense and all

relevant conduct.” Johnson, 375 F.3d at 1302 (quotations omitted).

The defendant bears the burden to demonstrate by a

preponderance of the evidence that he has met all the safety-valve

criteria. United States v. Carillo-Ayala, 713 F.3d 82, 90 (11th Cir.

2013).

Here, the district court did not clearly err in concluding that

Berry did not qualify for safety-valve relief. The government

asserted that Berry had not truthfully provided all of the

information he knew about the offenses to the government.

Although Berry disputed this contention, he did not present any

information that would have established by a preponderance of the

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evidence that he in fact satisfied the tell-all provision. Thus, he

failed to meet his burden of establishing his eligibility for safety-

valve relief. Id. at 90.

III. Conclusion

Because Berry is not entitled to relief on any of his claims,

we affirm his convictions and sentence.

AFFIRMED.