FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 JUNE 1, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-14084

Non-Argument Calendar

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D. C. Docket No. 08-00121-CR-A-N

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL LEE BOYKINS,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Alabama

_________________________

(June 1, 2010)

Before BLACK, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

Michael Lee Boykins appeals his convictions and the resulting 97-months’
sentence for conspiracy to distribute and possess with intent to distribute a

controlled substance, in violation of 21 U.S.C. § 846, and unlawful use of a

communication facility, in violation of 21 U.S.C. § 843(b). On appeal, Boykins

raises several issues: (1) whether the government adduced sufficient evidence

supporting his convictions, (2) whether the admission of a tape recorded statement

with a confidential informant violated his right to confront the witnesses against

him secured under the Sixth Amendment, (3) whether the district court erred by

including a two-level increase in his Guidelines calculation for the possession of a

firearm by a coconspirator, and (4) whether the district court erred by denying his

request for a two-level reduction in his Guidelines calculation for a minor role.

After review, we discern no error and accordingly affirm.

I. Sufficiency of the Evidence

Boykins argues that the government did not prove that he knowingly,

willingly, and voluntarily joined the conspiracy. He claims that the evidence

showed that he was stranded at a Motel 6 without transportation where he allegedly

counted drug money and made a trip to Louisiana with anther party, Jenkins,

allegedly to deliver drug money, but that he removed himself from that situation

once he had access to his vehicle. Boykins also claims that he neither recruited the

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confidential informant to join the conspiracy over the phone nor did he sell any

cocaine telephonically.

We review the sufficiency of the evidence de novo, viewing the evidence

and all reasonable inferences and credibility choices in favor of the government

and the jury’s verdict. United States v. Garcia, 405 F.3d 1260, 1269 (11th Cir.

2005) (per curiam). A conviction must be affirmed unless under no reasonable

construction of the evidence could the jury have found defendant guilty beyond a

reasonable doubt. Id. Credibility determinations are for the factfinder to make,

and we typically will not review such determinations. United States. v. Copeland,

20 F.3d 412, 413 (11th Cir. 1994) (per curiam).

In order to secure a conviction for conspiracy to distribute cocaine in

violation of 21 U.S.C. § 846, the government must prove beyond a reasonable

doubt that: (1) a conspiracy existed; (2) the appellant knew of the essential

objectives of the conspiracy; and (3) the appellant knowingly and voluntarily

participated in the conspiracy. United States v. Calderon, 127 F.3d 1314, 1326

(11th Cir. 1997). “Whether the [defendant] knowingly volunteered to join the

conspiracy may be proven by direct or circumstantial evidence, including

inferences from the conduct of the alleged participants or from circumstantial

evidence of a scheme.” Garcia, 405 F.3d at 1270 (internal quotation marks

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omitted). The elements of possession with intent to distribute cocaine are: (1)

knowing or intentional possession; (2) with intent to distribute or dispense; (3)

cocaine. See 21 U.S.C. § 841(a)(1). Finally, to support a conviction for unlawful

use of a communication facility under 21 U.S.C. § 843(b), the government must

prove that the defendant knowingly and intentionally used a communications

facility, such as a telephone, to facilitate the commission of a narcotics offense.

United States v. Rivera, 775 F.2d 1559, 1562 (11th Cir. 1985).

The evidence, taken in the light most favorable to the government, supports

Boykins’ convictions. The record supports the conclusion that a large conspiracy

existed and that the purpose of that conspiracy was to possess and distribute

cocaine. The record also supports the conclusion that Boykins knowingly and

voluntarily counted the proceeds from the sale of cocaine, that he knew the

proceeds were from the sale of cocaine distributed by other members of the

conspiracy, that he was present when the source of the cocaine collected some of

the proceeds, and that he knowingly and voluntarily traveled to Louisiana with

another member of the conspiracy to deliver further proceeds to the conspiracy’s

source of cocaine. Accordingly, the record contains sufficient evidence to support

his conviction for conspiracy under 21 U.S.C. § 846. The evidence also supports

the conclusion that Boykins knowingly and intentionally used a telephone to

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facilitate the distribution of cocaine. The record shows that Boykins engaged in

multiple phone calls with a confidential informant during which he discussed the

price and availability of cocaine and offered to facilitate a connection between the

confidential informant and another member of the conspiracy for access to cocaine.

Accordingly, the record contains sufficient evidence to support his conviction for

unlawful use of a communications facility in committing a felony under 21 U.S.C.

§ 843(b).

II. Confrontation Clause

Boykins argues that because the audio recordings of his alleged

conversations with the confidential informant were not authenticated at trial by the

confidential informant or any person physically present with him during the time

of the conversations, they were inadmissible testimonial hearsay. He argues

further that because the recordings were inadmissible hearsay, admission of the

recordings violated right his to confront his accuser secured to him under the Sixth

Amendment’s Confrontation Clause.

We review questions of constitutional law de novo and determinations of the

admissibility of evidence for abuse of discretion. United States v. Underwood, 446

F.3d 1340, 1345 (11th Cir. 2006). When a defendant fails to object to an alleged

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violation of the Confrontation Clause at trial, we review the alleged violation only

for plain error. United States v. Brazel, 102 F.3d 1120, 1141 (11th Cir. 1997).

Simply raising a hearsay objection at trial is insufficient to “preserve a

constitutional challenge under the Confrontation Clause for appeal.” United States

v. Arbolaez, 450 F.3d 1283, 1291 n.8 (11th Cir. 2006) (per curiam). To establish

plain error, the defendant must demonstrate that: (1) there was an error in the lower

court’s action; (2) such error was plain, clear, and obvious; and (3) the error

affected substantial rights. United States v. Foree, 43 F.3d 1572, 1578 (11th Cir.

1995). Even if these three elements are present, we will not reverse unless the

error seriously affected the fairness, integrity, or public reputation of the

proceedings. Id.

Notwithstanding several exceptions and exclusions, the Federal Rules of

Evidence bar hearsay, which is defined as “a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted.” Fed. R. Evid. 801(c), 802. Statements offered against

a party which are the party’s own statements, however, are not hearsay. Fed. R.

Evid. 801(d)(2)(a). Additionally, a confidential informant’s recorded statements

offered, as in the instant case, to give context to a defendant’s statements are not

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hearsay because they are not offered for the truth of the matter asserted. See

1

United States v. Price, 792 F.2d 994, 996-97 (11th Cir. 1986).

The Sixth Amendment’s Confrontation Clause protects the accused’s right

“to be confronted with the witnesses against him.” U.S. Const. amend. VI. The

Confrontation Clause, however, does not affect the admission of all out-of-court

statements. Instead, the focus is on whether the statement is testimonial in nature.

See Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 1364, 158 L. Ed.

2d 177 (2004). Although the Supreme Court has not precisely defined the contours

of testimonial statements, we do know that the core inquiry includes whether the

hearsay statement “[was] made under circumstances which would lead an objective

witness reasonably to believe that the statement would be available for use at a

later trial.” Id. at 52, 124 S. Ct. at 1364 (internal quotation marks omitted). We

have previously held that where the challenged evidence was a recorded statement

between a confidential informant and a co-conspirator regarding the purchase of

cocaine, the evidence was not testimonial. Underwood, 446 F.3d at 1347.

In this case, the district court did not err in admitting the recorded

conversations because they were neither hearsay nor barred by the Confrontation

 We note that the district court instructed the jury that the confidential informant’s 1

statements were not to be considered for the truth of the statements, but only to provide context

to Boykins’ statements.

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Clause. Boykins’ statements on the tape are not hearsay because they are his own

admissions. See Fed. R. Evid. 802(d)(2)(A). The confidential informant’s

statements are not hearsay because they were not offered for the truth of the matter

asserted. Even assuming arguendo that the informant’s statements were

testimonial, the Confrontation Clause does not bar the admission of those

statements because, as the Supreme Court noted in Crawford, “[t]he Clause . . .

does not bar the use of testimonial statements for purposes other than establishing

the truth of the matter asserted.” 541 U.S. at 59 n.9, 124 S. Ct. at 1369 n.9.

Finally, the Confrontation Clause does not bar the admission of Boykins’

statements because they were neither hearsay nor testimonial. A party’s own out

of court admissions are not hearsay, and, as in Underwood, Boykins clearly did not

make his statements under circumstances which would lead him to believe they

would later be used at trial against him.

III. Firearm Enhancement

Boykins argues that the district court should not have enhanced his sentence

due to the presence of a firearm because he did not possess a firearm, and there was

no testimony regarding a firearm or the possession of a firearm by a co-conspirator

at his trial. Boykins points out that the only evidence of a firearm was the Drug

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Enforcement Administration agent’s testimony during sentencing regarding coconspirators’ proffers to the government.

“We review the district court’s findings of fact [for a firearm enhancement]

under U.S.S.G. § 2D1.1(b)(1) for clear error, and the application of the Sentencing

Guidelines to those facts de novo.” United States v. Gallo, 195 F.3d 1278, 1280

(11th Cir. 1999). A firearm enhancement may be applied to a defendant if the

government establishes by a preponderance of the evidence that “(1) the possessor

of the firearm was a co-conspirator, (2) the possession was in furtherance of the

conspiracy, (3) the defendant was a member of the conspiracy at the time of

possession, and (4) the co-conspirator possession was reasonably foreseeable by

the defendant.” United States v. Pham, 463 F.3d 1239, 1245 (11 Cir. 2006) (per

th

curiam) (internal quotation marks omitted). Additionally, “[t]he adjustment should

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

weapon was connected with the offense,” and “[o]nce the government shows that a

firearm was present, the evidentiary burden shifts to the defendant to show that a

connection between the firearm and the offense is clearly improbable.” Id.

(internal quotation marks omitted).

In Pham, we recognized that (1) there is an “overpowering connection

between the use of firearms and narcotics traffic,” (2) “it [is] reasonably

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foreseeable that a co-conspirator would possess a firearm where the conspiracy

involved trafficking in lucrative and illegal drugs,” and (3) firearm enhancements

can be appropriate even if the defendant claims that he was unaware of the firearm.

See id. at 1246. Furthermore, we specifically noted that in that case the district

court did not err in applying the weapons enhancement where the vastness of the

conspiracy and the large amount of drugs and money made it reasonably

foreseeable to the defendant that a firearm would be possessed by a co-conspirator.

Id.

Here, the district court found that various co-conspirators possessed

firearms, that they did so in furtherance of the conspiracy, that Boykins was a

member of the conspiracy at the time the co-conspirators possessed firearms, and

that possession of a firearm by a co-conspirator was reasonably foreseeable given

the type of drug conspiracy and amount of money at hand. The record supports

those conclusions. At sentencing, the DEA agent testified to proffers made by

various co-conspirators to the effect that they possessed firearms throughout and in

furtherance of the conspiracy. Given the size and scope of the conspiracy, it was

reasonable to conclude, as in Pham, that the possession of firearms by coconspirators was reasonably foreseeable to Boykins. Moreover, Boykins has not

proven that the connection between the firearms and cocaine conspiracy is clearly

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improbable. Accordingly, the district court did not err in applying the firearm

enhancement to Boykins’ Guidelines calculation.

IV. Minor Role

Boykins argues that he was entitled to a minor role reduction in his sentence

because (1) he never had contact with any of the cocaine in the alleged conspiracy;

(2) all he did was count money, take a trip, and speak on the phone to the

confidential informant; and (3) his actions took place during a four or five day

period.

We review a district court’s determination of whether a defendant qualifies

for a minor role adjustment under the Guidelines only for clear error. United

States v. Rodriguez De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). The

defendant bears the burden at all times of establishing his minor role in the offense

by a preponderance of the evidence. Id. at 939. The district court has

“considerable discretion in making this fact-intensive determination.” Id. at 946.

It is not necessary for the court to make specific findings of fact, so long as its

“decision is supported by the record and the court clearly resolves any disputed

factual issues.” Id. at 939 (emphasis omitted).

A defendant may receive an adjustment for his mitigating role in the offense

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if he “plays a part in committing the offense that makes him substantially less

culpable than the average participant.” U.S.S.G. § 3B1.2, comment. (n.3(A)). A

two-level, minor role reduction under § 3B1.2(b) applies to a defendant “who is

less culpable than most other participants, but whose role could not be described as

minimal.” U.S.S.G. § 3B1.2, comment. (n.5).

De Varon sets forth a two-part analysis of a defendant’s conduct to

determine whether the defendant warrants a minor role reduction. 175 F.3d at

940-45. First, the court “must measure the defendant’s role against the relevant

conduct for which [he] was held accountable at sentencing.” Id. at 945. “[W]here

the relevant conduct attributed to a defendant is identical to [his] actual conduct,

[he] cannot prove that [he] is entitled to a minor role adjustment simply by

pointing to some broader criminal scheme in which [he] was a minor participant

but for which [he] was not held accountable.” Id. at 941. The first prong of De

Varon is often dispositive of the issue. See id. at 945. Second, the district court

may compare “the defendant’s role against the other participants, to the extent that

they are discernable, in that relevant conduct.” Id. at 945. To apply the adjustment

under this prong, the district court must find that “the defendant was less culpable

than most other participants in [his] relevant conduct.” Id. at 944 (emphasis

omitted). Even if a defendant’s role is “less than that of other participants engaged

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in the relevant conduct,” he might not be entitled to an adjustment because, in

some cases, there are no minor or minimal participants. Id.

The district court did not clearly err in determining that Boykins was not

entitled to a minor role reduction. Boykins was held responsible for a conspiracy

to distribute less than five kilograms of cocaine. Thus, the conduct he was held

accountable for was identical to his actual conduct. In relation to the second De

Varon inquiry, Boykins attempts to minimize the scope of his own actions;

however, he never suggests another participant against which to measure his

culpability in the relevant conduct. Even if Boykins had advanced an argument

along this line, we conclude that because Boykins participated in the counting and

conveyance of the substantial proceeds from the sale of the cocaine in question to

the cocaine source, the district court did not clearly err in concluding that Boykins

was a substantial participant. Accordingly, the district court did not err in denying

Boykins a two-level deduction for a minor role.

AFFIRMED.

2

 Appellant’s request for oral argument is DENIED. 2

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