[DO NOT PUBLISH]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

____________________

USCA11 Case: 21-13352 Date Filed: 10/24/2022 Page: 1 of 17
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”). 

USCA11 Case: 21-13352 Date Filed: 10/24/2022 Page: 2 of 17
21-13352 Opinion of the Court 3

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 prepaid 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 coconspirator, 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. 

USCA11 Case: 21-13352 Date Filed: 10/24/2022 Page: 3 of 17
4 Opinion of the Court 21-13352

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 

USCA11 Case: 21-13352 Date Filed: 10/24/2022 Page: 4 of 17
21-13352 Opinion of the Court 5

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 

USCA11 Case: 21-13352 Date Filed: 10/24/2022 Page: 5 of 17
6 Opinion of the Court 21-13352

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.” 

USCA11 Case: 21-13352 Date Filed: 10/24/2022 Page: 6 of 17
21-13352 Opinion of the Court 7

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 safetyvalve 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. 

USCA11 Case: 21-13352 Date Filed: 10/24/2022 Page: 7 of 17
8 Opinion of the Court 21-13352

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 

USCA11 Case: 21-13352 Date Filed: 10/24/2022 Page: 8 of 17
21-13352 Opinion of the Court 9

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 

USCA11 Case: 21-13352 Date Filed: 10/24/2022 Page: 9 of 17
10 Opinion of the Court 21-13352

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. 

USCA11 Case: 21-13352 Date Filed: 10/24/2022 Page: 10 of 17
21-13352 Opinion of the Court 11

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 

USCA11 Case: 21-13352 Date Filed: 10/24/2022 Page: 11 of 17
12 Opinion of the Court 21-13352

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 buyerseller 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 wellestablished 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 

USCA11 Case: 21-13352 Date Filed: 10/24/2022 Page: 12 of 17
21-13352 Opinion of the Court 13

“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.

USCA11 Case: 21-13352 Date Filed: 10/24/2022 Page: 13 of 17
14 Opinion of the Court 21-13352

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 

USCA11 Case: 21-13352 Date Filed: 10/24/2022 Page: 14 of 17
21-13352 Opinion of the Court 15

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 

USCA11 Case: 21-13352 Date Filed: 10/24/2022 Page: 15 of 17
16 Opinion of the Court 21-13352

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 

USCA11 Case: 21-13352 Date Filed: 10/24/2022 Page: 16 of 17
21-13352 Opinion of the Court 17

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

failed to meet his burden of establishing his eligibility for safetyvalve 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. 

USCA11 Case: 21-13352 Date Filed: 10/24/2022 Page: 17 of 17