USA v. Damian Sierra

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11708
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAMIAN SIERRA,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cr-00026-WFJ-JSS-1
____________________
USCA11 Case: 22-11708 Document: 31-1 Date Filed: 05/10/2023 Page: 1 of 7

-- 1 of 7 --

2 Opinion of the Court 22-11708
Before JILL PRYOR, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
Damian Sierra appeals his conviction for
possessing 500 grams or more of cocaine with the intent to distrib-
ute. He argues that the government presented insufficient evidence
to support the jury’s findings that he knew of and intended to dis-
tribute the cocaine. Sierra also contends that the district court
abused its discretion by refusing to instruct the jury on the lesser
included offense of simple possession of cocaine. On both points,
we disagree. The evidence presented at trial supporting Sierra’s
guilt is extensive. The district court also acted within its discretion
by refusing to instruct the jury on the lesser included offense of
simple possession.
I.
When reviewing a challenge to the sufficiency of the evi-
dence, we conduct a
de novo review, weighing the evidence in the
light most favorable to the government and resolving all reasona-
ble inferences in favor of the verdict.
United States v. Jiminez, 564
F.3d 1280, 1284 (11th Cir. 2009). The jury’s guilty verdict must be
affirmed unless there is no reasonable construction of the evidence
from which the jury could have found the defendant guilty beyond
a reasonable doubt.
United States v. Foster, 878 F.3d 1297, 1304
(11th Cir. 2018). A defendant must do more than put forth a rea-
sonable hypothesis of innocence to rebut the government’s
USCA11 Case: 22-11708 Document: 31-1 Date Filed: 05/10/2023 Page: 2 of 7

-- 2 of 7 --

22-11708 Opinion of the Court 3
evidence “because the issue is whether a reasonable jury could
have convicted, not whether a conviction was the only reasonable
result.”
United States v. Cruickshank, 837 F.3d 1182, 1188 (11th Cir.
2016).
To obtain a conviction for possession of a controlled sub-
stance with intent to distribute, the government must prove be-
yond a reasonable doubt that the defendant: (1) knew that he pos-
sessed a controlled substance; (2) possessed the controlled sub-
stance; and (3) intended to distribute it.
United States v. Woodard,
531 F.3d 1352, 1360 (11th Cir. 2008). Knowledge or intent may be
proven by circumstantial evidence.
Id. at 1309
. For example, a jury
may reasonably infer that a person caught in possession of a pack-
age containing large quantities of drugs knew of the presence of
those drugs because it is unlikely that a “prudent smuggler” would
entrust such valuable cargo to an innocent person without that per-
son’s knowledge.
United States v. Quilca-Carpio, 118 F.3d 719,
721−22 (11th Cir. 1997). Similarly, “[i]ntent to distribute may be in-
ferred from the quantity of cocaine seized.”
United States v. Mon-
tes-Cardenas, 746 F.2d 771, 778−79 (11th Cir. 1984).
In
United States v. Louis, which Sierra relies on in support
of his arguments on appeal, the defendant watched two men load
boxes into the back seat of a car in a shipyard and then drove the
car slowly toward the front gate. 861 F.3d 1330 (11th Cir. 2017).
The defendant’s employer walked alongside the car.
Id. When the
two men exited the shipyard, law enforcement agents stopped the
car.
Id. The defendant abandoned the car and fled on foot while the
USCA11 Case: 22-11708 Document: 31-1 Date Filed: 05/10/2023 Page: 3 of 7

-- 3 of 7 --

4 Opinion of the Court 22-11708
agents searched the car, discovering 111 bricks of cocaine in two of
the boxes.
Id. We held that, although the defendant’s presence and
flight were evidence that he knew that he was participating in
something criminal, the government failed to prove that the de-
fendant knew the boxes contained a controlled substance.
Id. at
1334.
The evidence presented at trial of Sierra’s possession,
knowledge, and intent to distribute the cocaine is extensive and
goes well beyond that presented against the defendant in
Louis.
See
id. Multiple law enforcement witnesses testified to the following
facts. On February 1, 2019, a detective observed a black Chevy Sil-
verado registered to Sierra pull up to a residence. Sierra was driving
the truck, exited the vehicle carrying a blue gift bag, and met with
another man. The man looked into the bag, then Sierra returned
to the truck to grab a large, black garbage bag before joining the
other man and entering the house. About half an hour later, Sierra
exited the house and entered his truck, driving away.
Another officer stopped the truck at the request of a detec-
tive and checked the windows for excessive tint. Sierra was the
driver and sole occupant of the vehicle. Other deputies joined the
officer at the traffic stop. After a canine indicated drugs in Sierra’s
vehicle, the police searched the truck.
Within the vehicle, deputies found a Christmas gift bag on
the floorboard. Inside the bag, deputies found a brick of narcotics
wrapped in black duct tape, about eight inches long by five or six
inches wide and two inches thick. They also recovered a notebook
USCA11 Case: 22-11708 Document: 31-1 Date Filed: 05/10/2023 Page: 4 of 7

-- 4 of 7 --

22-11708 Opinion of the Court 5
and Western Union receipts from the front passenger seat of Si-
erra’s car. A forensic chemist with the DEA later testified that the
brick contained approximately 996.7 grams of powder cocaine.
As for the Western Union receipts, Gary Corbett, a Special
Agent for the DEA testified that drug traffickers working in multi-
ple countries will send money across borders in bulk electronic
transfers, often through Western Union. He specifically stated that
Western Union transfers allow drug traffickers to transmit these
cash payments outside the banking system and avoid detection. He
testified that drug traffickers will send multiple payments to vari-
ous individuals to avoid exposing a co-conspirator with a single,
large cash transfer. Receipts from Western Union show that Sierra
sent three payments of $206, $204, and $206 to two recipients. Cor-
bett also testified that the notebook discovered in Sierra’s car ap-
peared to be a ledger for drug transactions.
Based on this testimony, Sierra’s claim that the evidence
could not support a finding that he knew of the cocaine and that he
intended to distribute it fails. The jury could reasonably infer Si-
erra’s knowledge and intent to distribute from the quantity of the
cocaine, its packaging, the circumstances of its discovery, and the
testimony of DEA Special Agent Corbett.
See Quilca-Carpio,
118 F.3d at 721−22;
Montes-Cardenas, 746 F.2d at 778−79. Accord-
ingly, we affirm the denial of Sierra’s motion for judgment of ac-
quittal.
USCA11 Case: 22-11708 Document: 31-1 Date Filed: 05/10/2023 Page: 5 of 7

-- 5 of 7 --

6 Opinion of the Court 22-11708
II.
The district court also did not abuse its discretion when it
refused to instruct the jury on the lesser included offense of simple
possession of cocaine. We review a claim that the district court
omitted an instruction for an abuse of discretion.
United States v.
Morris, 20 F.3d 1111, 1114 (11th Cir. 1994). To establish that the
district court abused its discretion in refusing to give the jury an
instruction for a lesser included offense, a defendant must satisfy a
two-part test: (1) he must show that the charged offense encom-
passes all the elements of the lesser offense, the “elements” test;
and (2) he must establish that “the evidence would permit the jury
rationally to acquit the defendant of the greater, charged offense
and convict him of the lesser.”
United States v. Whitman, 887 F.3d
1240, 1246 (11th Cir. 2018) (quotation marks omitted). A lesser of-
fense charge is not proper where, based on the evidence offered at
trial, “the factual issues to be resolved by the jury are the same as
to both the lesser and greater offenses.”
United States v. Gumbs,
964 F.3d 1340, 1349 (11th Cir. 2020) (quotation marks omitted).
Sierra is correct that the charged offense encompassed the
elements of the lesser offense. To obtain a conviction for simple
possession, the government must prove beyond a reasonable
doubt that the defendant knowingly or intentionally possessed a
controlled substance without authorization. 21 U.S.C. § 844;
see
also United States v. Stone, 139 F.3d 822, 834 (11th Cir. 1998) (stat-
ing that the elements for simple possession are “the knowing or
intentional possession of any controlled substance not obtained by
USCA11 Case: 22-11708 Document: 31-1 Date Filed: 05/10/2023 Page: 6 of 7

-- 6 of 7 --

22-11708 Opinion of the Court 7
a valid prescription” (emphasis omitted)). A conviction for posses-
sion with intent to distribute requires proof of each of the elements
of possession and additional evidence of intent to traffic the con-
trolled substance.
See Woodard, 531 F.3d at 1360.
But Sierra cannot establish that the jury could rationally
have convicted him of simple possession and, at the same time, ac-
quitted him of intending to distribute the cocaine.
See Whitman,
887 F.3d at 1246. As discussed above, a reasonable jury could infer
from the government’s evidence Sierra’s knowledge of the cocaine
and an intent to distribute it from the quantity, its packaging, and
the circumstances of its discovery. On the other hand, nothing
about Sierra’s activities, the amount of the cocaine, or any other
evidence suggested that Sierra possessed the cocaine for personal
use. Accordingly, we affirm the denial of Sierra’s requested jury in-
struction as to the lesser included offense of simple possession of
cocaine.
III.
Accordingly, the district court is AFFIRMED.
USCA11 Case: 22-11708 Document: 31-1 Date Filed: 05/10/2023 Page: 7 of 7

-- 7 of 7 --