             Case: 12-10968    Date Filed: 05/13/2013   Page: 1 of 14


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-10968
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket No. 2:11-cr-00040-JES-SPC-1


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

EDDY LUIS JOSE ESTRELLA,

                                                             Defendant-Appellant.
                          ________________________

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

                                 (May 13, 2013)

Before DUBINA, Chief Judge, MARTIN and FAY, Circuit Judges.

PER CURIAM:

      Appellant Eddy Estrella challenges his convictions and sentences for two

counts of distributing a detectable amount of oxycodone within 1,000 feet of a
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playground (“Counts One and Four”), in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(C) and 860 and 18 U.S.C. § 2; (2) one count of carrying a firearm during

and in relation to a drug-trafficking crime (“Count Two”), in violation of 18 U.S.C.

§§ 924(c)(1)(A)(i) and 2; (3) one count of possession of a firearm by a convicted

felon (“Count Three”), in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 2; (4)

one count of conspiracy to commit robbery affecting commerce (“Count Five”), in

violation of 18 U.S.C. § 1951(a); (5) one count of robbery affecting commerce

(“Count Six”), in violation of 18 U.S.C. §§ 1951(a) and 2; (6) one count of

conspiracy to use and carry firearms during and in relation to a crime of violence

(“Count Seven”), in violation of 18 U.S.C. §§ 924(o) and 2; (7) one count of using

and carrying firearms during and in relation to a crime of violence (“Count Eight”),

in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii), (C)(i) and 2; and (8) one count of

possession of firearms and ammunition by a convicted felon (“Count Ten”), in

violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 2. Estrella makes several

assertions of error on appeal: (1) whether the district court erred in denying his

motion to suppress his post-Miranda interview statements; (2) whether the district

court abused its discretion in admitting evidence of a prior robbery; (3) whether the

district court erred in denying his motion for a judgment of acquittal on Count

Two; (4) whether the district court erred in denying his motion for a judgment of

acquittal on Counts Five, Six, Seven, and Eight; and (5) whether his total sentence


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is substantively unreasonable. Specifically as to his fifth assertion of error, Estrella

contends that his 438-month sentence—consisting of (1) a 78-month sentence at

the low end of the applicable guideline range for Counts One, Three-Seven, and

Ten; (2) a 60-month consecutive sentence for Count Two; and (3) a 300-month

consecutive sentence for Count Eight—was unconstitutional under the Eighth

Amendment of the United States Constitution because it was disproportionate to

his offense and the lesser sentence received by his more culpable codefendant,

Miguel Martinez, who pleaded guilty rather than proceeding to trial. Furthermore,

he argues that the five and one-half years he received beyond the 31-year

mandatory minimum he faced was substantively unreasonable, for the same

reasons discussed in his constitutional argument.

                                           I.

      We apply a mixed standard of review to the district court’s order denying a

motion to suppress, reviewing fact-findings for clear error and the district court’s

application of the law to those facts de novo. United States v. Farley, 607 F.3d

1294, 1325‒26 (11th Cir. 2010).

      We review for abuse of discretion the district court’s admission of evidence

pursuant to Federal Rule of Evidence 404(b). United States v. Ellisor, 522 F.3d

1255, 1267 (11th Cir. 2008).




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      We review de novo the district court’s denial of a motion for a judgment of

acquittal, viewing the evidence in the light most favorable to the verdict and

drawing all reasonable inferences and credibility choices in favor of the verdict.

United States v. Tampas, 493 F.3d 1291, 1297‒98 (11th Cir. 2007) (internal

quotation marks omitted).

      We review de novo whether a defendant’s sentence violates the Eighth

Amendment’s prohibition on cruel and unusual punishment. United States v.

Haile, 685 F.3d 1211, 1222 (11th Cir. 2012), cert. denied, ___ U.S. ___, ___ S. Ct.

___, 81 U.S.L.W. 3348 (Apr. 1, 2013). We employ an abuse of discretion standard

when we review the reasonableness of a defendant’s final sentence. Id. at 1222‒

23.

                                          II.

      A. Miranda claim

      Estrella argues that the district court erred in denying his motion to suppress

evidence because Detectives Hicks and Luzarraga interviewed him in the absence

of counsel in violation of his constitutional rights. Specifically, he contends that

although the detectives advised him of his Miranda rights, his waiver of those

rights was not knowingly and voluntary because the detectives misled him as to the

purpose of the interview. We find no merit to Estrella’s assertion of error.




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      The district court found the detectives credible when they testified that the

purpose of the interview was to investigate the stolen firearm, not delve into the

facts of the robbery of Detective Lebid. We afford substantial deference to this

credibility determination. See United States v. Lewis, 674 F.3d 1298, 1303 (11th

Cir. 2012). In addition, even if the detectives had deceived Estrella about the

purpose of the interview, that deception would not have rendered his Miranda

waiver invalid. See Farley, 607 F.3d at 1328‒30 (rejecting a deception argument

because officers did not make any promise that interview would be limited to one

topic and nothing indicated that defendant was unsure of his rights or the

consequences of abandoning them). Estrella cannot show that the detectives said

anything that interfered with his “ability to understand the nature of his rights and

the consequences of abandoning them.” Id. at 1330. Moreover, even if Estrella

could establish a constitutional violation, any error in admitting his comments

concerning the robbery of Detective Lebid would have been harmless beyond a

reasonable doubt in light of the overwhelming evidence of Estrella’s guilt. See

United States v. Gari, 572 F.3d 1352, 1362 (11th Cir. 2009) (test for determining

whether constitutional error is harmless is whether it appears beyond reasonable

doubt that error did not contribute to verdict obtained).

      B. Evidence of prior crime




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      Estrella argues that the district court abused its discretion in admitting

evidence of a prior robbery because the robbery was not sufficiently similar to the

robbery of Detective Lebid, and the victim’s out-of-court identification of him as

the armed robber in the prior robbery was unreliable. His arguments fail.

      Estrella’s intent was a key issue in the prior robbery. His sole argument with

respect to the robbery was that he lacked any intent to participate in it and that he

had merely been present when his co-defendant Martinez attempted to commit the

robbery. Thus, the evidence of the robbery was relevant to prove Estrella’s intent

to rob Detective Lebid and also to establish the nature of his relationship with

Martinez. The relevant similarity was not the specific manner in which they had

committed the earlier robbery, but that they had committed the earlier robbery

together. This indicated a partnership in crime. Thus, it was highly relevant and

probative, and the admission of the evidence was not substantially outweighed by

the danger of unfair prejudice, especially in light of the district court’s instruction

to the jury. See Fed. R. Evid. 403.

      As to Estrella’s other contention, the district court correctly found that the

out-of-court identification was reliable. First, the showup was not unduly

suggestive, and it was reliable under the totality of the circumstances. See United

States v. Diaz, 248 F.3d 1065, 1102 (11th Cir. 2001) (setting out the two-step

analysis in assessing the constitutionality of a trial court’s decision to admit an out-


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of-court identification). The victim testified at the evidentiary hearing that he had

clearly seen Estrella during the robbery and recognized him afterwards.

Additionally, at the evidentiary hearing and trial, other witnesses identified Estrella

as the robber. Estrella, therefore, has failed to establish that the district court

abused its discretion in admitting evidence of the prior robbery.

      C. Judgment of Acquittal on Count Two

      Estrella asserts that the district court erred in denying his motion for a

judgment of acquittal on Count Two because the government did not prove that he

carried the Sig Sauer 9-millimeter firearm during and in relation to his first sale of

oxycodone to Detective Lebid or that he possessed it in furtherance of that sale.

The record belies his claim. Detective Lebid testified that he saw Estrella with a

loaded Sig Sauer 9-millimeter firearm in his front pocket and that the firearm was

readily available to Estrella during the entire drug transaction. Thus, there was

sufficient evidence to support Count Two, and the district court did not err in

denying Estrella’s motion for a judgment of acquittal on that count.

      D. Judgment of Acquittal on Counts Five, Six, Seven, and Eight

      Estrella claims that the district court erred in denying his motion for a

judgment of acquittal on the robbery counts because the evidence was insufficient

to prove that his attempted robbery of Detective Lebid had the requisite effect on

interstate commerce. The district court did not err.


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      To convict a defendant for violating the Hobbs Act, the evidence must

establish that the defendant committed a robbery that “in any way or degree”

obstructed, delayed, or affected commerce or the movement of any article or

commodity in commerce. 18 U.S.C. § 1951(a). The language of the statute speaks

in broad terms, “manifesting a purpose to use all the constitutional power Congress

has to punish interference with interstate commerce by extortion, robbery or

physical violence.” Stirone v. United States, 361 U.S. 212, 215, 80 S. Ct. 270, 272

(1960). The evidence in this case established at least a minimal effect on interstate

commerce. The transaction involved a purchase of firearms and oxycodone and

was directly related to interstate commerce. Thus, the evidence was sufficient to

support a Hobbs Act violation.

      E. Sentencing issues

      Estrella challenges the district court’s imposition of a 438 month sentence.

Specifically, he argues that the statutory mandatory consecutive sentence of 25

years’ imprisonment imposed on Count Eight pursuant to 18 U.S.C. §

924(c)(1)(C)(i) violates the Eighth Amendment because it is disproportionate to his

offenses. He further argues that, in conjunction with this sentence, his within-

guidelines-range sentence of 78 months’ imprisonment on Counts One, Three,

Four, Five, Six, Seven, and Ten resulted in a total sentence that was unreasonable.

Estrella is not entitled to relief on his sentencing challenges.


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      Section 924(c) mandates an additional and consecutive sentence of

imprisonment for a defendant who, during and in relation to a crime of violence or

drug-trafficking crime, uses, carries, or possesses—if the possession is in

furtherance of the underlying crime—a firearm. 18 U.S.C. § 924(c)(1)(A). The

default mandatory consecutive sentence, applied in this case, is a term of not less

than five years’ imprisonment. Id. § 924(c)(1)(A)(i). A second or subsequent

§ 924(c) conviction carries an increased mandatory consecutive sentence, also

applied in this case, of not less than 25 years’ imprisonment. Id. § 924(c)(1)(C)(i).

All § 924(c) convictions carry “a statutory maximum sentence of life

imprisonment, regardless of what subsection the defendant is sentenced under.”

United States v. Gray, 260 F.3d 1267, 1281 (11th Cir. 2001) (quoting United States

v. Pounds, 230 F.3d 1317, 1319‒20 (11th Cir. 2001)).

      The Eighth Amendment provides: “Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S.

Const. amend. VIII. “The Eighth Amendment does not require strict

proportionality between crime and sentence” but rather “forbids only extreme

sentences that are ‘grossly disproportionate’ to the crime.” United States v. Farley,

607 F.3d at 1341(quoting Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S. Ct.

2680, 2705 (1991) (Kennedy, J., concurring in part and concurring in the

judgment)). To determine whether a sentence is grossly disproportionate, a


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reviewing court must make an initial comparison between the offense and the

sentence. United States v. Reynolds, 215 F.3d 1210, 1214 (11th Cir. 2000). If a

reviewing court makes a “threshold determination” of gross disproportionality, it

should then compare the defendant’s sentence with the sentences received by other

offenders for the same crime. Id. If a defendant cannot make the “threshold

showing of disproportionality,” then a reviewing court need not consider the

sentences received by other offenders. United States v. Raad, 406 F.3d 1322, 1324

n.4 (11th Cir. 2005). In Harmelin, a divided opinion, a majority of the Supreme

Court agreed that a sentence of life imprisonment without the possibility of parole

for the offense of possession of 672 grams of cocaine did not violate the Eighth

Amendment. Harmelin v. Michigan, 501 U.S. 957, 961, 996, 111 S. Ct. 2680,

2684, 2702 (1991).

      Estrella’s total sentence of 438 months’ imprisonment does not violate the

Eighth Amendment. Estrella’s offenses—twice selling drugs within 1,000 feet of a

playground, carrying a firearm during a drug-trafficking crime, and using a firearm

during an armed robbery—were at least as serious as that of the defendant in

Harmelin, who was convicted of mere possession. Estrella’s sentence was less

severe than that received by the defendant in Harmelin, and, therefore, necessarily

fails to meet the threshold requirement of gross disproportionality.




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      We review the reasonableness of a sentence under a deferential

abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct.

586, 591 (2007). The party challenging the sentence has the burden to show it is

unreasonable in light of the record and the § 3553(a) factors. See United States v.

Tome, 611 F.3d 1371, 1376‒78 (11th Cir. 2010).

      The district court must impose a sentence that is “sufficient, but not greater

than necessary, to comply with the purposes” listed in § 3553(a)(2), including the

need to reflect the seriousness of the offense, promote respect for the law, provide

just punishment for the offense, deter criminal conduct, protect the public from the

defendant’s future criminal conduct, and provide the defendant with training,

medical care, or other correctional treatment. See 18 U.S.C. § 3553(a). In

imposing a particular sentence, the court must also consider the nature and

circumstances of the offense, the history and characteristics of the defendant, the

kinds of sentences available, the applicable guideline range, the pertinent policy

statements of the Sentencing Commission, the need to avoid unwarranted

sentencing disparities among defendants with similar records who have been found

guilty of similar conduct, and the need to provide restitution for victims. Id.

§ 3553(a)(1), (3)-(7).

      We examine whether the sentence was substantively reasonable in light of

the totality of the circumstances. Gall, 552 U.S. at 51, 128 S. Ct. at 597. A district


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court abuses its discretion when it balances the § 3553(a) factors unreasonably or

places unreasonable weight on any of the § 3553(a) factors. United States v. Irey,

612 F.3d 1160, 1189 (11th Cir. 2010) (en banc), cert. denied, 131 S. Ct. 1813

(2011). We reverse only if “left with the definite and firm conviction that the

district court committed a clear error of judgment in weighing the § 3553(a) factors

by arriving at a sentence that lies outside the range of reasonable sentences dictated

by the facts of the case.” Id. at 1190 (internal quotation marks omitted). The

weight to be accorded to any given § 3553(a) factor is a matter “committed to the

sound discretion of the district court.” United States v. Clay, 483 F.3d 739, 743

(11th Cir. 2007) (internal quotation marks omitted). We ordinarily expect a

sentence within the applicable guideline range to be reasonable. United States v.

Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). A sentence that falls well below

the statutory maximum penalty may also be indicative of reasonableness. See id.

      For a claim of substantive unreasonableness based on a sentencing disparity

among codefendants to succeed, we require that “apples [be] compared to apples.”

United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009) (internal

quotation marks omitted). Accordingly, a defendant who proceeds to trial is not

“similarly situated” to a codefendant who “cooperate[s] with the government and

enter[s] a written plea agreement.” Id. To be similarly situated, codefendants must

also have similar backgrounds and criminal histories. See United States v.


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Jayyousi, 657 F.3d 1085, 1117‒18 (11th Cir. 2011), cert. denied, 133 S. Ct. 29

(2012).

      Here, we conclude from the record that the district court reasonably imposed

a within-guideline sentence after considering the § 3553(a) factors. Estrella did not

show that he was “similarly situated” to his codefendant Martinez, who pleaded

guilty rather than proceed to trial. Moreover, Estrella faced a statutory maximum

sentence of life for Counts Two and Eight. His sentence, therefore, was well

below his overall sentencing exposure, further indicating its reasonableness.

      F. Clerical error

      “We may sua sponte raise the issue of clerical errors in the judgment and

remand with instructions that the district court correct the errors.” United States v.

Massey, 443 F.3d 814, 822 (11th Cir. 2006).

      Estrella’s final written judgment reflects that his conviction under Count

Two was for brandishing a firearm during and in relation to a drug-trafficking

crime, in violation of § 924(c)(1)(A)(ii), when he was actually convicted only of

carrying a firearm during and in relation to a drug-trafficking crime, in violation of

§ 924(c)(1)(A)(i).

      Accordingly, this case is remanded to the district court with instructions to

amend the judgment to correct the clerical error with respect to Count Two.




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                                             IV.

      We find no merit to any of Estrella’s challenges to his convictions and

sentences. Accordingly, we affirm the convictions and sentences; however, we

remand for a limited correction in the judgment.

      AFFIRMED IN PART, REMANDED IN PART.




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