[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 11-16065

Non-Argument Calendar

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D.C. Docket No. 5:11-cr-00017-WTH-TBS-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

ENRIQUE BORJA-ANTUNES, 

a.k.a. Teodoro Martinez-Jimienez, 

a.k.a. Jesus Borcha,

 Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(August 19, 2013)

Before HULL, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM: 

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Enrique Borja-Antunes appeals his convictions and total sentence of life 

imprisonment for 1 count each of possession with intent to distribute 50 grams or 

more of methamphetamine, and conspiracy to do so, in violation of 21 U.S.C. §§ 

841(a)(1), (b)(1)(A), and 846. Borja-Antunes raises three issues on appeal. First, 

he argues that the district court abused its discretion when it admitted, under 

Fed.R.Evid. 404(b), evidence of his 1995 federal conviction for possession with 

intent to distribute methamphetamine. Second, he argues that the district court 

abused its discretion when it denied his motion for a new trial. Third, he argues 

that the district court erroneously concluded that he had been convicted in 1993 of 

a state felony drug offense, without which he would not have been subject to a 

mandatory life sentence. Upon careful review of the record and the parties’ briefs, 

we affirm.

I.

Borja-Antunes argues that the district court improperly admitted evidence of 

his 1995 federal conviction for possession with intent to distribute 

methamphetamine. According to Borja-Antunes, we have held that prior 

convictions that were much less remote in time were inadmissible under Rule 

404(b). He asserts that the error here was not harmless because the government’s 

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remaining evidence of his guilt was far from overwhelming, as it consisted 

primarily of the testimony of a single co-conspirator.

We review a district court’s Rule 404(b) rulings for an abuse of discretion. 

United States v. Matthews, 431 F.3d 1296, 1311 (11th Cir. 2005). Under this 

standard, we must affirm, even if we might have decided the issue differently, so 

long as the trial court’s decision was not based on a clear error of judgment or 

application of the wrong legal standard. See id. at 1312. Rule 404(b) prohibits the 

admission of evidence of a person’s crimes or other wrongful acts except in certain 

circumstances. Fed.R.Evid. 404(b). Nevertheless, Rule 404(b) is a “rule of 

inclusion,” and relevant Rule 404(b) evidence “should not lightly be excluded” 

when it is central to the government’s case. United States v. Jernigan, 341 F.3d 

1273, 1280 (11th Cir. 2003). In order to be admissible under Rule 404(b), (i) the 

evidence must be relevant to an issue other than the defendant’s character; (ii) the 

government must offer sufficient proof for the jury to find by a preponderance of 

evidence that the defendant committed the act; and (iii) its probative value must 

not be substantially outweighed by its undue prejudice, and it must satisfy 

Fed.R.Evid. 403. Matthews, 431 F.3d at 1310-11.

A defendant who pleads not guilty to a drug-trafficking offense makes intent 

a material issue, which the government may prove through qualifying Rule 404(b) 

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evidence absent affirmative steps by the defendant to remove intent as an issue. 

United States v. Zapata, 139 F.3d 1355, 1357-58 (11th Cir. 1998); see also 

Matthews, 431 F.3d at 1311 (“[I]n every conspiracy case, . . . a not guilty plea 

renders the defendant’s intent a material issue . . . .” (quotation omitted)). 

Similarly, a defendant who presents a “mere presence” defense “forc[es] the 

government to prove his criminal intent so as to negate any innocent explanation 

for his presence.” United States v. Delgado, 56 F.3d 1357, 1365 (11th Cir. 1995). 

Where an extrinsic offense is offered to prove intent, its relevance is determined by 

comparing the defendant’s state of mind in perpetrating the extrinsic and charged 

offenses. Zapata, 139 F.3d at 1358. Thus, the first prong of the Rule 404(b) test is 

satisfied where the state of mind required for both offenses is the same. Id. Under 

the second prong, a conviction is sufficient proof that the defendant committed the 

prior act. Jernigan, 341 F.3d at 1282.

Under the third prong of the test, to determine whether the probative value 

of the evidence is substantially outweighed by its prejudicial effect, a district court 

must assess all the circumstances surrounding the extrinsic offense, including 

prosecutorial need, overall similarity between the extrinsic act and the charged 

offense, and temporal remoteness. Id. A similarity between the other act and a 

charged offense will make the other offense highly probative with regard to a 

defendant’s intent in the charged offense. See Zapata, 139 F.3d at 1358 (noting 

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that the probative value of extrinsic act evidence is high where the extrinsic 

evidence is “very similar” to the charged offense as to their “overall purposes,” 

especially where the government’s remaining evidence of intent is based in part on 

witnesses with questionable credibility); Delgado, 56 F.3d at 1366 (“[T]he greater 

the government’s need for evidence of intent, the more likely that the probative 

value will outweigh any possible prejudice.”). “[E]xtrinsic drug offenses do not 

tend to incite a jury to an irrational decision.” Id.

Although the age of a prior offense may depreciate its probity, we have 

refrained from adopting a bright-line rule regarding temporal proximity because 

remoteness analyses are so fact-specific that a generally applicable litmus test 

would be of dubious value. Matthews, 431 F.3d at 1311. Thus, an appellant bears 

a heavy burden in establishing an abuse of the court’s broad discretion in 

determining if a prior offense is too old to be probative. Id. We have held that, in 

a prosecution for a “large cocaine deal,” the district court did not abuse its 

discretion when it admitted evidence that the defendant had participated in “small 

marijuana deals” approximately 15 years before the charged offenses. See United 

States v. Lampley, 68 F.3d 1296, 1300 (11th Cir. 1995). Moreover, the 

significance of the time period since the prior offense is diminished where one was 

incarcerated for a significant part of that time. See United States v. LeCroy, 441 

F.3d 914, 926 (11th Cir. 2006) (concluding that the defendant’s ten-year-old 

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crimes were not too remote, due in part to the fact that he had spent most of that 

time in prison and had been released approximately six weeks before the charged 

offenses). Finally, a district court’s limiting instruction can reduce the risk of 

undue prejudice. See Zapata, 139 F.3d at 1358.

Even if the evidence meets this test, it still may be excluded if its probative 

value is substantially outweighed by the danger of confusion of the issues, 

misleading the jury, undue delay, waste of time, or needless presentation of 

evidence. See Fed.R.Evid. 403; United States v. Edouard, 485 F.3d 1324, 1344 & 

n.8 (11th Cir. 2007). Exclusion under Rule 403 is an “extraordinary remedy,” 

which should be used “only sparingly,” and the balance should be struck in favor 

of admissibility. Edouard, 485 F.3d at 1344 n.8 (quotations omitted). We 

therefore view the evidence in a light most favorable to its admission, maximizing 

its probative value and minimizing its undue prejudicial impact. Id.

Borja-Antunes has not met his burden of showing that the district court 

committed a clear error of judgment when it admitted his 1995 conviction. See

Matthews, 431 F.3d at 1311-12. The conviction satisfies the first two prongs of the 

Rule 404(b) admissibility test, because: (i) Borja-Antunes placed his intent at issue 

by pleading not guilty and setting forth a “mere presence” defense, see Matthews, 

431 F.3d at 1311; Zapata, 139 F.3d at 1357-58; Delgado, 56 F.3d at 1365; and (ii) 

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the conviction was sufficient proof that he committed the prior act, see Jernigan, 

341 F.3d at 1282. 

Borja-Antunes has not established error with respect to the third prong for 

several reasons. First, the prior offense is highly probative due to: (i) the 

similarities between the two offenses—both of which involved the intent to 

distribute similar amounts of methamphetamine, and (ii) the fact that the 

government’s remaining evidence of intent was based in large part on the 

testimony of Borja-Antunes’s co-conspirator Jose Solorio, a witness with 

questionable credibility. See Zapata, 139 F.3d at 1358. Second, we have approved 

of prior bad acts that were approximately 15 years old, even though the type and 

amount of drugs involved were different, whereas here, a similar amount of the 

same controlled substance was involved in both offenses, the prior of which 

occurred approximately 15 and one-half years before the instant offense and 

approximately 16 and one-half years before the start of trial. See Lampley, 68 F.3d 

at 1300. Third, Borja-Antunes spent approximately five of those years in prison, 

which diminishes the significance of the length of that period. See LeCroy, 441 

F.3d at 926. Moreover, testimony regarding the prior conviction was brief, and 

nothing in the record suggests that it resulted in confusion of the issues, misleading 

the jury, undue delay, waste of time, or needless presentation of evidence. See

Fed.R.Evid. 403; Edouard, 485 F.3d at 1344 & n.8. Finally, the district court’s 

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limiting instruction reduced the risk of undue prejudice. See Zapata, 139 F.3d at 

1358. Accordingly, Borja-Antunes has not shown that the district court abused its 

discretion when it admitted his 1995 conviction.

II.

Borja-Antunes argues that the district court erred when it denied his motion 

for a new trial because the evidence was insufficient to support the jury’s verdict. 

He asserts that the government’s primary witness was “an admitted liar and 

perjurer,” and “[n]o reasonable jury would have found [him] guilty based on the 

evidence at trial but for the evidence of [his] bad character.”

We review a district court’s ruling on a Fed.R.Crim.P. 33 motion for a new 

trial for an abuse of discretion. United States v. Hernandez, 433 F.3d 1328, 1332 

(11th Cir. 2005). In reviewing the sufficiency of the evidence, we consider the 

evidence in the light most favorable to the government, drawing all reasonable 

inferences and credibility choices in the government’s favor. United States v. 

Friske, 640 F.3d 1288, 1290-91 (11th Cir. 2011). A jury’s verdict cannot be 

overturned if any reasonable construction of the evidence would have allowed the 

jury to find the defendant guilty beyond a reasonable doubt. Id. at 1291. The 

evidence need not be inconsistent with every reasonable hypothesis except guilt, 

and the jury is free to choose between or among the reasonable conclusions to be 

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drawn from the evidence presented at trial. Id. When the government relies on 

circumstantial evidence, reasonable inferences, not mere speculation, must support 

the conviction. Id.

To sustain a conviction for conspiracy to possess with intent to distribute a 

controlled substance, the government must prove beyond a reasonable doubt that: 

(i) an illegal agreement existed; (ii) the defendant knew of it; and (iii) the 

defendant, with knowledge, voluntarily joined it. See Hernandez, 433 F.3d at 

1333. Participation in a conspiracy can be inferred from “a development and 

collocation of circumstances.” Id. (quotation omitted). Although mere presence at 

the scene of a crime is insufficient to support a conspiracy conviction, it is a 

probative factor which the jury may consider in determining whether a defendant 

knowingly and intentionally participated in a criminal scheme. Id.

To sustain a conviction for possession with intent to distribute a controlled 

substance, the government must establish: (i) knowledge; (ii) possession; and (iii) 

intent to distribute. United States v. Mercer, 541 F.3d 1070, 1076 (11th Cir. 2008). 

The government may prove possession by showing actual or constructive 

possession. Hernandez, 433 F.3d at 1333. Constructive possession exists when a 

defendant has ownership, dominion, or control over an object itself or dominion or 

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control over the premises or the vehicle in which the object is concealed. Intent to 

distribute may be inferred from the amount of the drug involved. Id.

On a motion for a new trial based on the weight of the evidence, the court 

need not view the evidence in the light most favorable to the verdict, but rather 

may weigh the evidence and consider the credibility of the witnesses. Id. at 1335. 

If the court concludes that, despite the abstract sufficiency of the evidence, it 

preponderates sufficiently heavily against the verdict that a serious miscarriage of 

justice may have occurred, it may set aside the verdict and grant a new trial. Id. 

However, where a jury’s verdict was reasonable, the district court may not reweigh 

the evidence and set aside the verdict “simply because it feels some other result 

would be more reasonable.” Id. at 1336. Motions for new trials based on the 

weight of the evidence are not favored, and courts are to grant them sparingly and 

with caution, doing so only in those really exceptional cases. Id. at 1336-37. 

Thus, courts have granted new-trial motions based on the weight of the evidence 

only where the credibility of the government’s witnesses had been impeached and 

the government’s case had been marked by “uncertainties and discrepancies,” e.g., 

where there was no direct proof of guilt and the government’s case depended upon 

compound inferences drawn from uncorroborated testimony of questionable 

credibility. United States v. Martinez, 763 F.2d 1297, 1313 (11th Cir. 1985).

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The district court did not abuse its discretion when it denied Borja-Antunes’s 

motion for a new trial. First, the evidence was sufficient to support BorjaAntunes’s convictions. The jury was entitled to find the existence of agreement to 

possess with intent to distribute methamphetamine and that Borja-Antunes 

knowingly and voluntarily joined it, based on Solorio’s testimony that: (i) he drove 

Borja-Antunes to Atlanta for the purpose of picking up one pound of 

methamphetamine; and (ii) the two returned to Georgia with the methamphetamine 

hidden under the hood of the truck and later divided it between them. See 

Hernandez, 433 F.3d at 1333. The jury also was entitled to find that BorjaAntunes knowingly possessed with intent to distribute 50 grams or more of 

methamphetamine based on the same testimony, as well as: (i) expert testimony 

that chemical tests established that a total of 443.7 grams of methamphetamine was 

recovered; and (ii) the testimony of a government agent regarding Borja-Antunes’s 

prior involvement in methamphetamine distribution. See Mercer, 541 F.3d at 

1076; Hernandez, 433 F.3d at 1333.

Second, Borja-Antunes has not shown that this was an exceptional case in 

which the evidence preponderated sufficiently heavily against the jury’s verdict 

that a serious miscarriage of justice may have occurred. See Hernandez, 433 F.3d 

at 1335-37. Although Solorio’s credibility was impeached to some extent, his 

testimony was corroborated by law enforcement agents and chemical analysts who 

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were directly involved in the investigation, as well as photographs and drugs 

admitted during trial. Thus, the government’s case did not depend upon compound 

inferences drawn from uncorroborated testimony. See Martinez, 763 F.2d at 1313.

III.

Finally, Borja-Antunes argues that the district court erroneously found that 

he had been convicted of a felony drug offense in Oregon state court in 1993 (the 

“1993 Case”). He asserts that the government submitted no fingerprints, 

photographs, or fingerprint expert testimony to satisfy its burden of establishing 

that he was the subject of that conviction. Moreover, the name, address, and date 

of birth of the defendant in the 1993 Case were different that Borja-Antunes’s, and 

there is no indication as to which charges the defendant in that case pleaded.

A defendant convicted under § 841(b)(1)(A) who previously has been 

convicted of two or more felony drug offenses is subject to a mandatory term of 

life imprisonment. 21 U.S.C. § 841(b)(1)(A). After the government files a § 851 

information identifying the prior convictions supporting this enhancement, the 

defendant may deny a conviction by filing a written response. Id. § 851(a), (c); 

United States v. Sanchez, 138 F.3d 1410, 1416 (11th Cir. 1998). “[T]he United 

States attorney shall have the burden of proof beyond a reasonable doubt on any 

issue of fact,” and the defendant has the burden of proof by a preponderance of the 

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evidence on any issue of fact raised by the response. 21 U.S.C. § 851(c)(1), (2); 

Sanchez, 138 F.3d at 1416.

Whether a prior disposition of a state criminal charge is a “conviction” under 

§ 841(b)(1) is a question of federal law. United States v. Mejias, 47 F.3d 401, 403-

04 (11th Cir. 1995). A plea of nolo contendere to a state felony drug charge is a 

“conviction” under § 841(b)(1), even if adjudication was withheld in state court. 

See id. Under Oregon law at the time of the 1993 Case, delivery of a controlled 

substance was a Class B Felony. See Or. Rev. Stat. § 475.992(1) (1992).

We allot substantial deference to the fact-finder in reaching credibility 

determinations. United States v. McPhee, 336 F.3d 1269, 1275 (11th Cir. 2003). 

The fact-finder, who personally observes witnesses’ testimony, is in a better 

position than a reviewing court to assess their credibility. See United States v. 

Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). The resolution of a credibility 

dispute will not be reversed for clear error unless the testimony is contrary to the 

laws of nature, or is so inconsistent or improbable on its face that no reasonable 

fact-finder could accept it. Id. Similarly, when a defendant testifies in his own 

defense, the fact-finder may disbelieve his testimony, which may be considered as 

substantive evidence of his guilt. See United States v. Brown, 53 F.3d 312, 314 

(11th Cir. 1995). Thus, when a defendant chooses to testify, he runs the risk that, 

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if disbelieved, the fact-finder might conclude the opposite of his testimony is true. 

See id.

Here, the district court heard evidence from the Government that it 

determined showed beyond a reasonable doubt that Borja-Antunes was the 

defendant convicted of the 1993 offense. The Government presented evidence that 

the defendant in the 1993 Case had the name of Antunes Borja, which is simply a 

reversal of the order of Borja-Antunes’s surnames, and that Borja-Antunes’s NCIC 

report lists “Enrique Antunes Borja” as one of Borja-Antunes’s aliases. It also 

pointed out that the PSI in Borja-Antunes’s 1995 conviction, which he did not 

object to, lists the 1993 conviction as a prior offense. Additionally, in 1993, the 

defendant’s belongings were mailed to “Mavfclia” in Anaheim, a name which is 

similar to Marphulia, one of Borja-Antunes’s sisters listed in the PSI. Although 

Borja-Antunes denied that his sister Marphulia ever lived in Anaheim, he testified 

at the hearing that she lived in Corona, which this Court takes judicial notice is 

located next to Anaheim. And, Borja-Antunes’s belongings in this case were 

mailed to his sister Lucinda in Anaheim. The Government further pointed out that 

the case file from the 1993 Case contains more than one birthdate for the 

defendant, and one listed is the same as Borja-Antunes’s birthdate given in this 

case: January 27, 1970.

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 Borja-Antunes testified at his sentencing hearing, denying that he was the 

defendant in the 1993 case. The district court—which was in the best position to 

assess his credibility—was entitled to disbelieve him, and, as a result, conclude 

that the opposite of what he said was true. See Ramirez-Chilel, 289 F.3d at 749; 

Brown, 53 F.3d at 314. Borja-Antunes also conceded at that time that he had 

resided in Oregon, which would place him in the right state for the offense. 

Finally, the Government presented evidence that the NCIC report on BorjaAntunes lists the 1993 conviction. In light of this evidence, we cannot conclude 

that the district court erred in finding beyond a reasonable doubt that BorjaAntunes is the same person as the person convicted in Oregon in 1993. 

Borja-Antunes’s assertion that “it is uncertain to which charges” the 

defendant in the 1993 Case pleaded is unavailing. Although the 1993 Case 

documentation is not the model of clarity, it was sufficient for the district court to 

have determined that it established a felony drug conviction. First, the indictment 

listed four charges covering two statutory provisions: (i) delivery of a controlled 

substance, under § 475.992(1); and (ii) possession of a controlled substance, under 

§ 475.992(4). The judgment indicates that a “no contest” plea was entered to 

“DCS,” and a “PCS” charge was dismissed. The district court was entitled to 

determine that the notations “DCS” and “PCS” in the judgment referred to the 

charges for delivery of a controlled substance and possession of a controlled 

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substance in the indictment, and that the “no contest” plea to a charge of “DCS” 

therefore was a plea to delivery of a controlled substance. 

AFFIRMED.

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