[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 19

- 14843

____________________
UNITED STATES OF AMERICA,
Defendant

- Appellee,

versus BENJAMIN GREEN ROBINSON,

Plaintiff

- Appellant.

____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:19

- cr

- 00132

- GKS

- LRH

- 1

____________________ USCA11 Case: 19-14843 Date Filed: 01/31/2022 Page: 1 of 62 Opinion of the Court 19

- 14843

Before R OSENBAUM , J ILL P RYOR , and E D C ARNES , Circuit Judges.

PER CURIAM:Benjamin Robinson was convicted of conspiring to distribute and possess with intent to distribute over 500 grams of cocaine.
See 28 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846. He received a 110

- month sentence. Robinson raises four issues on appeal. After c areful review and with the benefit of oral argument, we find no merit to any of them.First, Robinson argues that the trial court erroneously denied his motion to suppress a package of cocaine intercepted at the post office and introduced against him at trial. He also complains that the district court should have held an evidentiary hearing on his motion. Both arguments fail. Robinson needed to establish a reasonable expectation of privacy in the package before he challenge d the search as unreasonable under the Fourth Amendment

. United States v. Cooper , 203 F.3d 1279, 1284 (11th Cir. 2000)

. If a defendant fails to plead sufficient facts to show a reasonable expectation of privacy , “a trial court may refuse a defendant’s request for a suppression hearing” and deny his motion to suppress. United States v. Richardson , 764 F.2d 1514, 152 6

– 2 7 (11th Cir. 1985) ( quo ting United States v. Sneed , 732 F.2d 886 (11th Cir. 1984)). The pack age was sent from “David Cortez” and addressed to “Brian Stein.” In his motion, Robinson never alleged either of these names w as an alias of his . N or did he claim a connection to either of the addresses listed on the packag e

. He likewise failed to USCA11 Case: 19-14843 Date Filed: 01/31/2022 Page: 2 of 619

- 14843 Opinion of the Court 3
assert any other basis for having a reasonable expectation of privacy in the package. Because Robinson’s motion to suppress “was wholly lacking in sufficient factual allegations to establish standing, the district court did not abu se its discretion in refusing to hold an evidentiary hearing.” Cooper , 203 F.3d at 128 5 ; see United States v. Smith , 39 F.3d 1143, 1145 (11th Cir. 1994) (affirming district court’s denial of motion to suppress letter where defendant gave

“ equivocal testim ony regarding his ownership interest in the letter, ” and the evidence showed he was “ neither the sender nor the addressee of the letter ”)

. Second, Robinson challenges the admission of his prior cocaine

- trafficking conviction under Rules 404(b) and 403 of the Federal Rules of Evidence

. Because Robinson failed to object to this evidence at trial, we review for plain error. United States v. Brown
, 665 F.3d 1239, 1247 (11th Cir. 2011)

. We apply a three

- part test to evaluate whether eviden ce is admissible under Rules 404(b) and does not violate Rule 403 : (1) “the evidence must be relevant to an issue other than the defendant’s character”; (2) “the evidence mustbe sufficient to support a finding that the defendant actually committed the ex trinsic act”; and (3) “the probative value of the evidence must not be substantially outweighed by unfair prejudice. ” United States v. Diaz

- Lizaraza , 981 F.2d 1216, 1224 (11th Cir. 1993) (citations omitted). In his response to the government’s pretrial motion, Robinson conceded that the first two prongs of this test were satisfied. That leaves only the third one

— t hat the value of USCA11 Case: 19-14843 Date Filed: 01/31/2022 Page: 3 of 64 Opinion of the Court 19

- 14843
the evidence was substantially outweighed by the danger of unfair prejudice. See Fed. R. Evid. 403.
We have upheld the admissibility of evidence of prior drug offenses in controlled

- substance conspiracy cases when the prior offenses have involved different drugs and when they have occurred more than ten years before the charged offense. See Diaz

Lizaraza , 981 F.2d at 1224 (prior marijuana offense admitted to show “intent to conspire to possess and distribute cocaine”); United States v. Lampley , 68 F.3d 1296, 1300 (11th Cir. 1995) (evidence of small marijuana deals from fifteen years prior admissible to prove intent to distribute large amounts of cocaine) . Robinson’s prior conviction was for cocaine trafficking (which was the charged substance here) and occurred less than six years before the charged conduct here

. Robinson shows no p lain error in the court’s admission of his prior conviction here. Third, Robinson argues insufficient evidence support s his
conviction. We review c hallenges to the sufficiency of the evidence de novo , asking “whether, under the totality of the circumstan ces, there is sufficient evidence to support a jury verdict whenthe facts are viewed in the light most favorable to the government.” United States v. Guevara , 894 F.3d 1301, 1307 (11th Cir. 2018) (quotation marks omitted)

. The elements of conspiracy to possess with intent to distribute a controlled substance, in violation of 21 U.S.C. § 846 including the following: (1) an agreement to violate § 841(a)(1) existed between at least two people; “ (2) the defendant knew about the agreement; and (3) the defendant USCA11 Case: 19-14843 Date Filed: 01/31/2022 Page: 4 of 619

- 14843 Opinion of the Court 5
voluntarily joined the agreement.” United States v. Colston
, 4 F.4th 1179, 1187 (11th Cir. 2021) (citation omitted).
Robinson asserts that sufficient evidence was lacking here because he i ntended to sell marijuana, not c ocaine. But we have explained that “ proof of the type of drug involved in the conspiracy is separate and distinct from proof of mens rea as to the type of drug.” United States v. Achey , 943 F.3d 909, 913 (11th Cir. 2019).
So Robinson’s defense that he intended to distribute marijuana was
not a defense at all. See United States v. Sanders , 668 F.3d 1298, 1310 (11th Cir. 2012) (knowledge of the particular type of controlled substance is not an element of 28 U.S.C. § 841(b)). 1 Taking the evidence in the light most favorable to the government, we conclude that sufficient evidence supports the verdict, and Robinson’s motion for a directed verdict was properly denied. Fourth, Robinson c ontends the government violated his rights under Brady v. Maryland , 373 U.S. 83 (1963), by failing to turn over an interview between the lead case agent and Robinson’s codefendant in which the codefendant allegedly confirmed that

1 Robinson argues that an exception to this general rule applies for case s wherethe indictment charges knowledge of the substance as an element of the offense. See United States v. Narog , 372 F.3d 1243, 1257 (11th Cir. 2004). But Robinson’s indictment is materially ind istinguishable from the indictment in Sanders , where we concluded that the indictment did not make knowledge of the specific controlled substance an element of the offense. See Sanders , 668 F.3d at 1311. Not only that, but we have e xplained that the Narog exception is no longer good law

. See Colston
, 4 F.4th at 1187 ; United States v. Nunez , 1 F.4th 976, 990

– 91 (11th Cir. 2021). USCA11 Case: 19-14843 Date Filed: 01/31/2022 Page: 5 of 66 Opinion of the Court 19

- 14843
Robinson was a marijuana d ealer. 2 Robinson’s Brady claim is unavailing because the undisclosed interview was not favorable
, and at best, it was cumulative. As we’ve explained, proof that Robinson intended to deal marijuana was not a legal defense here

. Plus, the agent conceded on cross

- examination that Robinson was a marijuana dealer . So even assuming that the evidence was somehow favorable, it “would have constituted, at best, cumulative evidence.” Kelley v. Sec’y for Dep’t of Corr ., 377 F.3d 1317, 1361 (11th Cir.

2 004) (citation omitted). As a result
, we cannot find that a timelydisclosure would have created a “reasonable probability” of a different result here

. Bagley , 473 U.S. at 682. For these reasons, we affirm.

AFFIRMED.

2 To establish a Brady violation, a defendant must show the following : “ (1) the prosecution suppressed evidence; (2) the evidence was favorable to him; and (3) the evidence was material to the establishment of his guilt or innocence. ” United States v. Jeri , 869 F.3d 1247, 1260 (11th Cir. 2017) ( quotation mark s omitted). Evidence is material “on ly if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley , 473 U.S. 667, 682 (1985). USCA11 Case: 19-14843 Date Filed: 01/31/2022 Page: 6 of 6