FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APRIL 28, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-13220

Non-Argument Calendar

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D. C. Docket No. 08-20337-CR-JEM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROGELIO CABRERA,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(April 28, 2010)

Before EDMONDSON, BIRCH and BLACK, Circuit Judges.

PER CURIAM:
Rogelio Cabrera appeals his convictions and sentences imposed for

conspiracy to transport stolen goods, receiving or possessing stolen goods, and

knowingly transporting stolen goods. Cabrera asserts two issues on appeal. He

claims (1) the evidence was insufficient to support his convictions, and (2) the

district court erred in denying his motion for a two-level reduction in his offense

level based on his minor role in the offense. We conclude there was sufficient

evidence to support Cabrera’s convictions and that the district court did not err in

denying Cabrera a minor-role reduction. Accordingly, we affirm. 

I. SUFFICIENCY OF THE EVIDENCE

We review the district court’s denial of a motion for acquittal based on

sufficiency of the evidence de novo, “viewing the evidence in the light most

favorable to the government and drawing all reasonable inferences in favor of the

verdict.” United States v. Schier, 438 F.3d 1104, 1107 (11th Cir. 2006). A jury is

free to disbelieve a defendant’s testimony and consider any false explanation he

gives for his behavior as substantive evidence of his guilt. United States v.

Williamson, 339 F.3d 1295, 1301 n.14 (11th Cir. 2003).

A. Conspiracy

Cabrera first challenges the sufficiency of the evidence to support his

conviction for conspiracy to transport stolen goods in interstate commerce. To

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prove Cabrera violated 18 U.S.C. § 371, the Government was required to show

(1) Cabrera conspired with at least one other person to “to achieve an unlawful

objective;” (2) Cabrera knowingly and voluntarily participated in the conspiracy;

and (3) an overt act was committed to further the conspiracy. See United States v.

Harmas, 974 F.2d 1262, 1267 (11th Cir. 1992). Because conspiracy offenses are

“predominately mental in composition,” the government may rely on

circumstantial evidence to demonstrate a meeting of the minds. United States v.

Arias-Izquierdo, 449 F.3d 1168, 1182 (11th Cir. 2006). Presence and association,

while not controlling, are probative of conspiracy and may be considered by the

jury. United States v. Lluesma, 45 F.3d 408, 410 (11th Cir. 1995). 

Cabrera claims his conviction rested solely on evidence that he associated

with the persons who robbed the warehouses. He claims there was no evidence he

actually knew about or participated in the conspiracy to steal the merchandise. 

However, Cabrera admits to driving the other conspirators from Florida to Texas

and renting a hotel room for them over the weekend of the break-in. He was

found with the co-conspirators in the warehouse area near the time of the break-in

while in possession of burglary tools. He was also tied to the truck used to

transport stolen goods back to Florida. Drawing inferences in the Government’s

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favor, a reasonable jury could conclude that Cabrera was a knowing participant in

the conspiracy to steal from the warehouses. 

B. Receiving and Transporting Stolen Goods

Cabrera next disputes the sufficiency of the evidence to support his

convictions for receiving stolen goods under 18 U.S.C. § 2315, and transporting

stolen goods under 18 U.S.C. § 2314. To support a conviction under each of these

statutes, the Government was required to show Cabrera knew the goods in

question were stolen. See 18 U.S.C. §§ 2314, 2315. 

Cabrera contends the evidence was insufficient to demonstrate that he knew

the goods were stolen. Cabrera’s association with the other robbers in the area of

the break-in near the time of the crime while in possession of the type of tools

needed to accomplish the theft, along with his failure to offer a plausible

alternative explanation as to his reason for traveling from Florida to Texas with

the other robbers on the weekend of the crime, was sufficient to allow a reasonable

jury to conclude that Cabrera knew the goods in question were stolen. Having

found the evidence sufficient to support the jury’s verdict on all three counts, we

affirm Cabrera’s convictions.

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II. ROLE IN THE OFFENSE

We review for clear error the district court’s denial of an offense-level

reduction requested for a mitigating role in an offense. United States v. De Varon,

175 F.3d 930, 937 (11th Cir. 1999) (en banc). The district court’s factual findings

may be based on evidence at trial, undisputed statements in the Presentence

Investigation Report (PSI), and evidence at the sentencing hearing. United States

v. Polar, 369 F.3d 1248, 1255 (11th Cir. 2004).

The Sentencing Guidelines provide that, with regard to the offense level, “if

the defendant was a minor participant in any criminal activity, decrease by 2

levels.” U.S.S.G. § 3B1.2(b). A minor participant means any participant “who is

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

as minimal.” U.S.S.G. § 3B1.2 cmt. 5. The proponent of an adjustment bears the

burden of proving his sentence should be reduced to reflect his role in the offense

by a preponderance of the evidence. De Varon, 175 F.3d at 939.

The PSI found Cabrera rented a hotel room and a vehicle on behalf of the

conspiracy. It also noted the conspiracy’s ring leader stated that Cabrera

personally helped break into the warehouse. Cabrera did not object to those

findings. We thus conclude the district court did not clearly err in finding that

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Cabrera did not qualify for a minor role reduction. We, accordingly, affirm his

sentence.

AFFIRMED.

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