                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________                 FILED
                                                          U.S. COURT OF APPEALS
                                No. 08-11776                ELEVENTH CIRCUIT
                            Non-Argument Calendar             December 18, 2008
                          ________________________           THOMAS K. KAHN
                                                                  CLERK
                    D. C. Docket No. 07-00348-CR-IPJ-PWG

UNITED STATES OF AMERICA,
                                                                  Plaintiff-Appellee,

                                     versus

DAVID MONTERA-BELTRAN,
a.k.a. David Montero-Beltran,
JULIO CESAR SANCHEZ-MORENA
a.k.a. Julio Martinez-Hernandez,
a.k.a. JoJo,

                                                          Defendants-Appellants.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Alabama
                         _________________________
                               (December 18, 2008)

Before BIRCH, HULL and MARCUS, Circuit Judges.

PER CURIAM:

      David Montera-Beltran and Julio Cesar Sanchez-Morena appeal from their

convictions and sentences for conspiracy to possess with intent to distribute five
kilograms or more of cocaine hydrochloride, in violation of 21 U.S.C. §§

841(a)(1) and 846.    On appeal, Montera-Beltran argues that the district court

abused its discretion in failing to give his requested jury charge, and Sanchez-

Morena argues that the district court erroneously enhanced his sentence: (1) from

an offense level of 32 to 36, pursuant to U.S.S.G. § 2D1.1(c)(2); and (2) by an

additional two points, pursuant to U.S.S.G. § 2D1.1(b)(1). After careful review,

we affirm.

      We review a district court’s refusal to give a requested jury instruction for

abuse of discretion. United States v. Richardson, 532 F.3d 1279, 1289 (11th Cir.

2008). We review the district court’s interpretation of the sentencing guidelines

de novo and its factual findings, such as determinations of drug quantities or

firearm possession, for clear error. United States v. Jordi, 418 F.3d 1212, 1214

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

2005); United States v. Geffrard, 87 F.3d 448, 452 (11th Cir. 1996). We will not

find clear error unless we have a “definite and firm conviction that a mistake has

been committed.”     United States v. Crawford, 407 F.3d 1174, 1177 (11th Cir.

2005) (quotation marks omitted).

      First, we are not persuaded by Montera-Beltran’s argument that the district

court abused its discretion in failing to give his requested jury charge. “A criminal



                                          2
defendant has the right to have the jury instructed on [his] theory of defense,

separate and apart from instructions given on the elements of the charged offense.”

United States v. Ruiz, 59 F.3d 1151, 1154 (11th Cir. 1995).          The defendant’s

burden of presenting evidence to obtain the instruction is “extremely low” and the

district court must view the evidence in a light most favorable to the defendant. Id.

      However, “[a] trial court is not bound to use the exact words and phrasing

requested by defense counsel in its jury charge . . . .” United States v. Gonzalez,

975 F.2d 1514, 1517 (11th Cir. 1992). We will find reversible error in a district

court’s refusal to give a requested jury charge only if “(1) the requested instruction

correctly stated the law; (2) the actual charge to the jury did not substantially cover

the proposed instruction; and (3) the failure to give the instruction substantially

impaired the defendant’s ability to present an effective defense.” Richardson, 532

F.3d at 1289 (quotation marks omitted).         In deciding whether a defendant’s

requested instruction was substantially covered in the actual charge given to the

jury, we “need only ascertain whether the charge, when viewed as a whole, fairly

and correctly states the issues and the law.” Gonzalez, 975 F.2d at 1517. Further,

“a defendant is not automatically entitled to a theory of the defense instruction if

that argument is adequately covered in another instruction . . . .” United States v.

Blanton, 793 F.2d 1553, 1561 (11th Cir. 1986).



                                           3
      Here, the district court did not abuse its discretion in refusing to give

Montera-Beltran’s requested jury instruction because the actual charge given

substantially covered his proposed jury instruction. See Richardson, 532 F.3d at

1289. Montera-Beltran’s proposed instruction emphasized that knowledge of the

conspiracy, presence during the commission of overt acts, and flight from police

alone are not sufficient to sustain a conviction. While the district court did not use

Montera-Beltran’s proposed language, it did instruct the jury, inter alia, that a

conspirator must willfully join the conspiracy while “knowing the unlawful

purpose of the plan,” and that the act must have been done “voluntarily and

intentionally and not because of mistake or accident.” The district court also stated

that a “person who has no knowledge of a conspiracy but who happens to act in a

way which advances some purpose . . . does not thereby become a conspirator.” In

regard to “presence,” the court instructed that “mere presence at the scene of the

transaction or event . . . does not standing alone establish proof of conspiracy.”

With respect to “flight,” the court stated that “intentional flight by a person

immediately after a crime has been committed or after that person has been

accused of a crime that has been committed is not sufficient in itself to establish

the guilt of that person.” The court stated, “There may be reasons for a person to

be unwilling to be interviewed by law enforcement agents that are perfectly



                                          4
innocent that in no way show any consciousness of guilt . . . .” Thus, the jury

instructions given substantially covered Montera-Beltran’s proposed instruction.

Accordingly, we affirm Montera-Beltran’s conviction.

       Next, we reject Sanchez-Morena’s claim that the district court clearly erred

in calculating the drug quantity attributable to him for purposes of determining his

base offense level. Section 2D1.1 of the Sentencing Guidelines provides that the

base offense level for a possession or a conspiracy drug offense is ordinarily

calculated by determining the quantity of drugs attributable to a defendant. See

generally U.S.S.G. § 2D1.1. When a conviction stems from conspiracy charge, the

defendant is responsible for the amount of drugs in all reasonably foreseeable acts

done in furtherance of the conspiracy. U.S.S.G. § 1B1.3(a)(1)(B).

       In determining the drug quantity, the sentencing court may use the evidence

heard during trial, facts admitted by the defendant’s plea of guilty, undisputed

statements in the presentence investigation report (“PSI”), or evidence presented at

the sentencing hearing. United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir.

1989).1 Where the district court’s determination of the drug quantity is based on

       1
         A defendant’s failure to object to the facts stated in a PSI or PSI Addendum constitutes
an admission of those facts. United States v. Bennett, 472 F.3d 825, 833-34 (11th Cir. 2006).
We have held that “challenges to the PSI must assert with specificity and clarity each factual
mistake of which [the] defendant complains.” United States v. Aleman, 832 F.2d 142, 145 (11th
Cir. 1987). The district court is entitled to rely on statements in the PSI when they are not
contested, even in the absence of supporting evidence. United States v. Hedges, 175 F.3d 1312,
1315 (11th Cir. 1999).

                                                5
testimony of witnesses who appear before the court, great deference is given to the

court’s assessment of the credibility of witnesses and evidentiary content of the

testimony. United States v. Lee, 68 F.3d 1267, 1276 (11th Cir. 1995). If a district

court does not make individualized findings regarding the scope of criminal

activity undertaken by a particular defendant in a drug conspiracy, “the sentence

may nevertheless be upheld if the record supports the amount of drugs attributed to

a defendant.” United States v. Ismond, 993 F.2d 1498, 1499 (11th Cir. 1993).

      “‘Where there is no drug seizure or the amount seized does not reflect the

scale of the offense, the court shall approximate the quantity of the controlled

substance.’”    United States v. Frazier, 89 F.3d 1501, 1506 (11th Cir. 1996)

(quoting U.S.S.G. § 2D1.1, cmt. n.12).       “In estimating the quantity of drugs

attributable to a defendant, a court may base its computation on evidence showing

the average frequency and amount of a defendant’s drug sales over a given period

of time.” Id.    A defendant’s sentence cannot be based on mere speculation, but

must “be based on fair, accurate, and conservative estimates of the quantity of

drugs attributable to a defendant . . . .” United States v. Zapata, 139 F.3d 1355,

1359 (11th Cir. 1998).

      “When a defendant objects to a factual finding that is used in calculating his

guideline sentence, such as drug amount, the government bears the burden of



                                         6
establishing the disputed fact by a preponderance of the evidence.” Rodriguez, 398

F.3d at 1296.    Although the preponderance standard is a relaxed evidentiary

standard, “it does not grant the court a license to sentence a defendant in the

absence of sufficient evidence.” Id. (quotations marks omitted).

      The record here shows that the district court did not clearly err in sentencing

Sanchez-Morena pursuant to U.S.S.G. § 2D1.1(c)(2) based on its finding that the

conspiracy involved more than 50 kilograms of cocaine hydrochloride, because

there was sufficient evidence in the record to support the finding.             Law

enforcement seized 25 kilograms of cocaine hydrochloride that was en route to

Sanchez-Morena’s house. Witnesses testified to delivering three to six shipments

of cocaine to Sanchez-Morena on prior occasions. The PSI contained undisputed

statements from a cooperating defendant that each of these prior shipments

contained between 10 and 25 kilograms of cocaine hydrochloride. Therefore, the

district court did not clearly err by attributing at least 50 kilograms of cocaine

hydrochloride to Sanchez-Morena.

      Finally, we find no merit to Sanchez-Morena’s argument that the district

court clearly erred in finding that he possessed a dangerous weapon for purposes of

enhancing his sentence.    Guidelines Section 2D1.1 provides that a defendant’s

offense level should increase two points “[i]f a dangerous weapon (including a



                                         7
firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). The Sentencing Commission

has noted that “[t]he enhancement for weapon possession reflects the increased

danger of violence when drug traffickers possess weapons. The adjustment should

be applied if the weapon was present, unless it is clearly improbable that the

weapon was connected with the offense.” U.S.S.G. § 2D1.1, cmt. n.3.

      To justify the dangerous weapon enhancement, the government must show

by a preponderance of the evidence that either the firearm was present at the site of

the charged conduct or prove that the defendant possessed a firearm during conduct

associated with the offense. United States v. Stallings, 463 F.3d 1218, 1220 (11th

Cir. 2006). If the government meets its burden, the burden shifts to the defendant

to demonstrate that a connection between the weapon and the offense was “clearly

improbable.” Id. (quotation marks omitted).

      The defendant does not have to use the firearm to facilitate the commission

of the offense. United States v. Audain, 254 F.3d 1286, 1289 (11th Cir. 2001). In

establishing a connection between the firearm and a drug conspiracy, we have held

that the firearm enhancement “is to be applied whenever a firearm is possessed

during conduct relevant to the offense of conviction.” United States v. Pham, 463

F.3d 1239, 1246 (11th Cir. 2006) (quotation marks omitted). “Relevant conduct

includes acts ‘that were part of the same course of conduct or common scheme or



                                          8
plan as the offense of conviction . . . .’” Id. (quoting U.S.S.G. § 1B1.3(a)(2)). In

Pham, we concluded that a firearm was possessed during conduct relevant to the

offense of conviction in a drug conspiracy case when the firearm was located in a

safe containing drugs and drug paraphernalia. Id.

      The district court did not clearly err in applying the two-point dangerous

weapon enhancement because the firearm was present at the site of the charged

conduct, and Sanchez-Morena failed to show that a connection between the firearm

and offense was clearly improbable. Furthermore, police found the weapon in the

same house where they discovered digital scales, a heat sealer for sealing bags,

plastic bags, rubber bands, money wrappers, a money counter, and duct tape used

to package money and drugs, and a money counter. Thus, the firearm was

possessed during conduct relevant to the offense of conviction.           See id.

Accordingly, we affirm Sanchez-Morena’s conviction and 180-month sentence.

      AFFIRMED.




                                         9
