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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-13102
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 1:17-cr-00346-TCB-CMS-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

RICARDO SILVA,
a.k.a. Pops,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                            (March 27, 2020)

Before WILSON, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
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       Ricardo Silva appeals his convictions and 420-month total sentence for

drug-trafficking offenses and possession of a firearm during a drug-trafficking

crime. On appeal, Silva argues that (1) the district court erroneously denied his

motion for a judgment of acquittal; (2) the district court erroneously applied an

importation sentencing enhancement, pursuant to U.S.S.G. § 2D1.1(b)(5); and

(3) his 420-month total sentence was procedurally and substantively unreasonable.

After careful consideration, we affirm.

                                      I.      BACKGROUND

A. Factual Background 1

       As part of an investigation of a methamphetamine trafficking ring, agents

with the Drug Enforcement Administration (“DEA”) wiretapped a cell phone that

Silva was using while he was an inmate at Smith State Prison under the custody of

the Georgia Department of Corrections. DEA agents intercepted numerous texts

and phone calls in which Silva coordinated deals to sell large quantities of

methamphetamine. Acting undercover, Agent Chase Hallman contacted the

wiretapped phone to set up a drug deal. Hallman sent a text message saying that he

was “[l]ooking for some work.” Doc. 242 at 28.2 Silva responded, “[T]hat’s cool.




       1
          The facts come from the evidence adduced at trial and the unobjected-to facts contained
in the presentence investigation report.
       2
           “Doc. #” refers to the numbered entry on the district court’s docket.
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I’ll be ready but I come out after 6 P.M.”

Hallman texted the cell phone

again later that evening. He wrote, “So you are good with twelve five for a whole

[kilogram]?”

Silva responded “Yes. If you get consistent I will drop the

number some.”

Silva then talked on the phone to arrange the deal. Silva told

Hallman to meet with someone named Flacko to complete the transaction. On the

day of the arranged deal, an undercover agent met with Flacko. When Flacko gave

the agent only half a kilogram of methamphetamine—not the whole kilogram

agreed upon—Hallman contacted Silva about the discrepancy. Silva promised that

he would give Hallman extra methamphetamine to compensate for the mix-up.

When Hallman contacted Flacko about getting the extra methamphetamine, Flacko

said that he had not gotten permission from Silva to “turn over the dope.”

Silva told Hallman to contact another one of his associates, Lydia Beck, about

making up the shortage. When Hallman called Beck, she said that she “usually

winds up fixing” Silva’s mistakes.

He met Beck, and she gave him the

methamphetamine.

      After the transaction, law enforcement continued to investigate Silva.

During the investigation, the wiretap picked up a phone call between Silva and

Beck, in which Silva asked Beck to hold drugs for another associate, Scrappy.

From the wiretap, investigators learned the address of the house where the drugs


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would be delivered, set up surveillance at the house, and obtained a search warrant.

When the officers executed the search warrant the next day, they found 13-gallon

jugs containing methamphetamine in solution.

      From the wiretap, investigators picked up another phone call in which Silva

organized a drug deal with an associate, Leslie Nelson. Law enforcement set up

surveillance, watched the deal take place, and intercepted texts between Silva and

Nelson confirming that the deal was done. Nelson drove away and, shortly

thereafter, was apprehended by a Georgia patrolman. A search of her truck

revealed three kilograms of methamphetamine and a loaded gun. The gun was not

registered under Silva’s name. The wiretap picked up no conversations between

Silva and Nelson in which they discussed the gun.

B. Procedural Background

      Silva was charged with (1) conspiracy to distribute methamphetamine, in

violation of 21 U.S.C. § 841(a)(1) (Count 1); (2) four counts of possession with

intent to distribute, in violation of § 841(a)(1) (Counts 2–5); and (3) possession of

a firearm during a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(A)(i) (Count 6). He pled not guilty.

      1. The Criminal Trial

      At trial, the government presented evidence to the jury about its

investigation, including testimony about how the cell phone was used to organize


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the drug transactions discussed above. The government also presented evidence

linking the cell phone to Silva. DEA Officer Robert Keim testified that he

searched Silva’s prison cell and discovered the cell phone that was the subject of

the wiretap. By listening to the intercepted phone calls and talking to Silva in

person, Keim determined that Silva was the prisoner who possessed the cell phone

and used it to coordinate drug deals. Keim was “confident” that Silva was the

primary user of the cell phone because he had spoken with Silva once “for

approximately five minutes,” and Silva had “an extremely distinct voice.” Doc.

241 at 113–14.

      On cross-examination, when asked whether he thought the voice in the calls

was Silva’s, Keim testified, “I am pretty confident—I am confident that that was

his voice that we captured.”

He later confirmed, “It’s Silva.”

He did not consult with an expert or request a voice exemplar to confirm that

the voice on the phone was Silva’s. There was no security video footage showing

Silva using the phone or cell site data showing that the phone was located in the

prison on the days the drug deals took place. Other than Silva’s roommate, Keim

interviewed no other prisoners to see whether they had access to the phone.

      Jonathan Santiago, an officer at Smith State Prison, testified that he

interacted with Silva once or twice a week and was familiar with Silva’s voice,




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which was distinctive. When the government played an audio recording from an

intercepted phone call on Silva’s cell phone, Santiago recognized Silva’s voice.

      Hallman testified that he was present for the search of Silva’s prison cell.

The identification number of the cell phone that was wiretapped matched that of

the cell phone found in Silva’s prison cell. After the search, Hallman spoke with

Silva and recognized Silva’s voice from the phone calls. Hallman testified that one

of Silva’s associates, Pollo, “was in Mexico” during the entire investigation. Doc.

242 at 131. Hallman also testified that, in his experience, it was common for guns

to be associated with drug deals and drug stashes.

      The government rested. Silva then moved for a judgment of acquittal on all

counts, pursuant to Federal Rule of Criminal Procedure 29(a), arguing that the

evidence was insufficient to prove that he participated in the charged crimes. The

district court denied the motion, and Silva rested without presenting any evidence.

The jury found Silva guilty on all counts.

      2. Sentencing

      Before sentencing, the probation office prepared a presentence investigation

report (“PSR”). According to the unobjected-to facts in the PSR, Silva coordinated

with co-conspirators and trafficked large quantities of methamphetamine while he

was incarcerated. The PSR determined that Silva could be held accountable for




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4,761.5772 grams of “methamphetamine actual” and 65.504 kilograms of

methamphetamine mixture.

      The PSR calculated that Silva’s total offense level was 44, which included a

two-level enhancement for importation of methamphetamine under the United

States Sentencing Guidelines, U.S.S.G. § 2D1.1(b)(5). The PSR explained that

Silva “knew that the methamphetamine involved in the offense was imported by

Pollo, [Silva’s] source of supply in Mexico.” PSR ¶ 86a. Regarding Silva’s

criminal history, the PSR noted that he was serving a sentence for a past drug

conviction and had been incarcerated since 2010. The PSR determined that Silva’s

criminal history category was III. Based on an adjusted offense level of 44 and a

criminal history category of III, the PSR determined that Silva’s Guidelines range

was life plus 60 months’ imprisonment.

      In a sentencing memorandum, Silva objected to the two-level importation

enhancement under § 2D1.1(b)(5), arguing that there was no evidence showing that

he participated in the importation of the methamphetamine from Mexico or knew it

was imported from Mexico. He stated that “almost all methamphetamine available

in [the United States] is now imported from Mexico.” Doc. 169 at 1. Additionally,

Silva argued that the recommended Guidelines sentence was disproportionately

harsh in his case, which involved no violence, large sums of money, or major

distribution network. The government responded that the importation


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enhancement was appropriate because Silva’s crimes “simply involved the

importation” of methamphetamine, which was all the enhancement required. Doc.

171 at 1-2.

      At sentencing, the district court adopted the unobjected-to facts and legal

conclusions in the PSR. The court noted that it had read the parties’ sentencing

memoranda and heard argument from Silva regarding the importation

enhancement. Silva argued at sentencing that the importation enhancement was

inapplicable because there was no evidence that he knew the methamphetamine

came from Mexico. Silva asserted that the government’s reading of the

enhancement was “way too expansive because virtually all of the

meth[amphetamine] comes from Mexico now, [and] it would apply to everybody.”

Doc. 244 at 3. In response, the government submitted written summaries of phone

calls between Silva and his associates that were prepared as part of the DEA

investigation. Silva did not object, and the court admitted the evidence, which

showed that: (1) Silva told one associate that he got his product from Pollo, who

was in Tamuaulipas, Mexico; (2) Silva asked another associate if he could call

Mexico on his phone, and then told the associate to call Pollo; (3) Silva told yet

another associate that he was talking to “the guy . . . in Mex”; and (4) Pollo sent

Silva a text message telling him that Pollo was in a cartel. Doc. 206-2 at 1–4. The

court overruled Silva’s objection, stating that there was not “any way around”


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applying the enhancement and noting that, as Silva had stated, “there is not much

meth, at least significant amounts of it, in Georgia that is not imported from

Mexico.” Doc. 244 at 3–4.

      The court asked the parties for their sentencing recommendations. The

government argued that a total sentence of life plus 60 months was appropriate

considering Silva’s leadership role in the conspiracy and history of trafficking

drugs. Silva requested a total sentence of 25 years (300 months), the statutory

minimum, arguing that there were no “sufficient aggravators” to justify a total life

sentence.

Stating that it had “carefully considered all of the

sentencing factors set forth” in 18 U.S.C. § 3553(a), the court sentenced Silva to a

below-guidelines total sentence of 420 months, which included 360 months as to

Counts 1–5, to run concurrently, and 60 months as to Count 6, to run consecutively

to the 360-month term for Counts 1–5.

Silva objected, without success.

      This is Silva’s appeal.

                         II.    STANDARDS OF REVIEW

      We review de novo the denial of a Rule 29 motion for a judgment of

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

making all reasonable inferences and credibility determinations in the

government’s favor. United States v. Cooper, 

, 734 (11th Cir. 2019).

We review the district court’s factual findings at sentencing for clear error, but we


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review the district court’s application of the Sentencing Guidelines de novo.

United States v. Matos-Rodriguez, 

, 1309 (11th Cir. 1999). We

review the reasonableness of a sentence under a deferential abuse of discretion

standard. Gall v. United States, 

, 41 (2007); see also United States v.

Irey, 

, 1189 (11th Cir. 2010) (en banc) (“A district court abuses its

discretion when it (1) fails to afford consideration to relevant factors that were due

significant weight, (2) gives significant weight to an improper or irrelevant factor,

or (3) commits a clear error of judgment in considering the proper factors.”

(internal quotation marks omitted)).

                                 III.   DISCUSSION

A. Motion for a Judgment of Acquittal

      Silva first argues that the district court erred in denying his motion for a

judgment of acquittal. We will uphold the denial of a Rule 29 motion if “a

reasonable trier of fact could conclude that the evidence establishes the defendant’s

guilt beyond a reasonable doubt.” United States v. Rodriguez, 

,

1244 (11th Cir. 2000). Because “the jury is free to choose between or among the

reasonable conclusions to be drawn from the evidence presented at trial, our

sufficiency review requires only that a guilty verdict be reasonable, not inevitable,

based on the evidence.” United States v. Browne, 

, 1253 (11th Cir.

2007) (internal quotation marks omitted).


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      Silva argues that the district court erroneously denied his motion for a

judgment of acquittal on Counts 1–5 because the evidence failed to establish that

he was the person coordinating the drug deals on the cell phone. We disagree: that

argument is belied by the record. At trial, witnesses testified that (1) officers found

the wire tapped cell phone in Silva’s prison cell, (2) Silva had a distinctive voice,

and (3) the voice on the wiretapped cell phone matched Silva’s voice. Further,

undercover officers mentioned Silva to Silva’s associates, and the associates

appeared to acknowledge that Silva was involved in the drug deals. In light of that

evidence, the jury reasonably concluded that Silva used the phone to coordinate

drug deals and traffic methamphetamine. See 

.

       Silva points out that the government failed to present any voice exemplar

evidence to confirm that it was his voice on the cell phone. Even assuming that the

lack of exemplar evidence meant that a guilty verdict was not “inevitable,” that in

and of itself does not render the jury’s guilty verdict unreasonable. See 

. In light of the substantial evidence, discussed above, indicating

that Silva was the inmate using the wiretapped cell phone, a reasonable trier of fact

could conclude that the evidence established Silva’s guilt beyond a reasonable

doubt. See 

. Thus, the district court did not err in

denying Silva’s motion for a judgment of acquittal on Counts 1–5.




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      Silva further argues that the evidence was insufficient to convict him under

§ 924(c) because it was not reasonably foreseeable that Nelson would carry a gun

to her drug deal. Appellant’s Br. at 22. To prove a violation of § 924(c), the

government was required to show that, during and in relation to a drug-trafficking

conspiracy, the defendant used, carried, or possessed a firearm in furtherance of

that conspiracy. United States v. Gunn, 

, 1234 (11th Cir. 2004). A

conspirator may be found guilty of violating § 924(c) even if he was not present

when the offense was committed “if the carrying or using of a firearm by a

coconspirator is a reasonably foreseeable action of the conspiracy.” United States

v. Diaz, 

, 1100 (11th Cir. 2001).

      Based on the evidence at trial, a reasonable jury could conclude that it was

reasonably foreseeable that Nelson would carry a gun to a drug deal, so Silva was

not entitled to a judgment of acquittal on Count 6. See id.; see also 

. The jury heard evidence that Silva communicated with Nelson to set

up the drug deal. Although the jury heard no evidence that Silva and Nelson

discussed a gun, the jury did hear Hallman testify that drugs and guns were

typically associated with one another. In addition, the jury heard that (1) Silva

coordinated multiple drug deals for the sale of methamphetamine and worked with

numerous associates, and (2) the drug deals involved large quantities of

methamphetamine. Under our precedent, this evidence was sufficient for a jury to


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have found that it was “reasonably foreseeable” that Silva’s co-conspirator would

carry a firearm. See United States v. Hromada, 

, 689 (11th Cir. 1995)

(explaining that in general “[g]uns and violence go hand-in-hand with illegal drug

operations.”). Accordingly, we affirm on this ground.

B. Importation Guideline Enhancement

      Silva also argues that the district court erred at sentencing when it applied an

enhancement because the offense involved the importation of methamphetamine.

“The burden of establishing evidence of the facts necessary to support a sentencing

enhancement falls on the government, and it must do so by a preponderance of the

evidence.” United States v. Perez-Oilveros, 

, 783 (11th Cir. 2007).

The district court must ensure that the government carries this burden by finding a

sufficient basis for the requested enhancement.

Guidelines provide for a two-level enhancement to a

defendant’s offense level when “the offense involved the importation of

amphetamine or methamphetamine or the manufacture of amphetamine or

methamphetamine from listed chemicals that the defendant knew were imported

unlawfully.” U.S.S.G. § 2D1.1(b)(5). We previously addressed the scope of this

enhancement in Perez-Oliveros. In Perez-Oliveros, the defendant was

apprehended while driving a truck loaded with methamphetamine that recently had

crossed the Mexican 

. On appeal, the defendant argued


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that because he personally did not drive the truck over the border, he could not be

subject to the importation enhancement. 3

We rejected the argument

that the importation enhancement applied “to only those defendants who

themselves transport methamphetamine across the border.”
 

We

reasoned that the enhancement was not limited to individuals who personally

transported methamphetamine because the Sentencing Commission used the “more

inclusive language ‘involved the importation,’” even though it could have used the

more restrictive language it used in a different subsection. Id.; compare U.S.S.G.

§ 2D1.1(b)(5) (applying a two-level enhancement if the offense “involve[s] the

importation of . . . methamphetamine”), with U.S.S.G. § 2D1.1(b)(3) (applying an

enhancement “[i]f the defendant unlawfully imported or exported a controlled

substance”).

       Silva acknowledges that the importation enhancement applies if the

methamphetamine was imported from Mexico, even if he did not personally

transport it across the border. But he argues that the district court erroneously

imposed the enhancement because the evidence did not establish that the

methamphetamine was imported from Mexico. He also asserts that his case is

factually distinguishable from Perez-Oliveros because he was incarcerated during



       3
        At the time that we decided Perez-Oliveros, this enhancement appeared at U.S.S.G.
§ 2D1.1(b)(4).
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the drug deals involved in the instant case, whereas Perez-Oliveros had personally

driven the drug-laden truck. We disagree and conclude that the district court’s

application of § 2D1.1(b)(5) was appropriate. Although Silva was in prison during

the drug deals, the record contains significant evidence linking him to ongoing

methamphetamine operations in Mexico. Specifically, the evidence showed that

Silva discussed drug deals—which took place in the United States—with Pollo,

who was located in Mexico and in a cartel. Additionally, Silva told one associate

that Pollo was his drug supplier. In light of that evidence, it was not clear error for

the district court to conclude that the methamphetamine that was the subject of the

drug deals came from Mexico. See 
Matos-Rodriguez, 188 F.3d at 1309
.

      Alternatively, Silva argues that “it cannot be determined whether the district

court made a factual finding beyond that the offense involved meth imported from

Mexico.” Appellant’s Br. at 25. But under Perez-Oliveros, all the court was

required to determine was that the offense “involved” the importation of

methamphetamine. See 
Perez-Oliveros, 479 F.3d at 784
. Regarding the

importation enhancement, the district court noted that it had read the sentencing

memoranda, heard argument from the parties, and admitted evidence showing that

Silva communicated with Pollo, who was in Mexico, about the drug deals. Thus,




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there was a sufficient factual basis for the court to conclude that the enhancement

was appropriate. See 
Askew, 193 F.3d at 1183
. We affirm on this ground.4

C. Procedural and Substantive Reasonableness of Total Sentence

       Finally, Silva challenges his sentence as procedurally and substantively

unreasonable. In reviewing the reasonableness of a sentence, we first consider

whether the district court committed any significant procedural error. 
Gall, 552

U.S. at 51
. A sentence is procedurally unreasonable if a district court commits an

error “such as failing to calculate (or improperly calculating) the Guidelines range,

. . . failing to consider the § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen sentence . . . .”
 Id. 5

Procedural 
reasonableness does not require that a court recite or discuss each of the



       4
         In Perez-Oliveros, we “decline[d] to define the exact contours of what it means for an
offense” to involve the importation of methamphetamine. 
Perez-Oliveros, 479 F.3d at 784
.
Although the outer boundaries of the enhancement’s applicability are unclear, we conclude that
Silva had the “requisite level of involvement” in the drug deals to support the enhancement
because the evidence showed that he worked directly with a cartel member in Mexico to bring
into the United States methamphetamine that he then distributed.
 Id.
       5
          Under 
§ 3553(a), the district court is required to impose a sentence “sufficient, but not
greater than necessary, to comply with the purposes” of the statute. 18 U.S.C. § 3553(a). These
purposes include the need to: reflect the seriousness of the offense; promote respect for the law;
provide just punishment; deter criminal conduct; protect the public from the defendant’s future
criminal conduct; and effectively provide the defendant with educational or vocational training,
medical care, or other correctional treatment. 18 U.S.C. § 3553(a)(2). 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 guidelines range, the pertinent policy
statements of the Sentencing Commission, the need to avoid unwarranted sentencing disparities,
and the need to provide restitution to victims.
 Id. § 3553(a)(1), 
(3)–(7).


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§ 3553(a) factors. See United States v. Bonilla, 
463 F.3d 1176
, 1182 (11th Cir.

2006).

      When reviewing a sentence for substantive reasonableness, we examine the

totality of the circumstances, including “whether the statutory factors in § 3553(a)

support the sentence in question.” United States v. Gonzalez, 
550 F.3d 1319
, 1324

(11th Cir. 2008). “We will not second guess the weight (or lack thereof) that the

judge accorded to a given factor under § 3553(a), as long as the sentence ultimately

imposed is reasonable in light of all the circumstances presented.” United States v.

Snipes, 
611 F.3d 855
, 872 (11th Cir. 2010) (alterations adopted) (internal quotation

marks omitted). We may vacate a sentence only if we firmly believe 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.” 
Irey, 612 F.3d at 1190 
(internal quotation marks

omitted). We may not set aside a sentence “merely because we would have

decided that another one is more appropriate.”
 Id. at 1191. 
We apply no

presumption of reasonableness to sentences within the Guidelines range, but we

ordinarily expect such sentences to be reasonable. United States v. Stanley, 
739

F.3d 633
, 656 (11th Cir. 2014). The party challenging the sentence bears the

burden of showing it is unreasonable. United States v. Tome, 
611 F.3d 1371
, 1378

(11th Cir. 2010).


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      The district court imposed no procedurally or substantively unreasonable

sentence. 
Gall, 552 U.S. at 41
. Beyond arguing that the importation enhancement

was improper, Silva has not asserted that the court miscalculated the Guidelines

range. Nor has he argued that the court neglected to consider the § 3553(a) factors,

based the total sentence on clearly erroneous facts, or failed to explain its

sentencing decision. Rather, Silva argues that his total sentence was not

“proportionate to the crime for which [he was] convicted,” as his case did not

involve a “major drug conspiracy.” Appellant’s Br. at 27–28. That argument is

refuted by the record, which shows that Silva (1) committed the offenses while he

was incarcerated for another drug trafficking crime and (2) coordinated with

multiple associates to organize the distribution of over 65 kilograms of

methamphetamine. Notably, the court imposed a total sentence below the

Guidelines range of life plus 60 months. See 
Stanley, 739 F.3d at 656
. Thus,

Silva’s total sentence was within the range of reasonable sentences dictated by the

facts of the case, especially considering the scope of the drug conspiracy, the

quantity of methamphetamine involved, and his criminal history. See 
Irey, 612

F.3d at 1190
. We therefore conclude that Silva has not met his burden of showing

that his total sentence was unreasonable. See 
Tome, 611 F.3d at 1378
.

Accordingly, we affirm his 420-month total sentence.




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                         IV.   CONCLUSION

For the foregoing reasons, we affirm Silva’s convictions and sentences.

AFFIRMED.




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