FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPTEMBER 21, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

 IN THE UNITED STATES COURT OF APPEALS

 FOR THE ELEVENTH CIRCUIT

 ________________________

 No. 10-10381 

Non-Argument Calendar

 ________________________

 D.C. Docket No. 8:09-cr-00185-JSM-TBM-2

UNITED STATES OF AMERICA,

lllllllllllllllll Plaintiff-Appellee,

 versus

JAVIER HUERTA,

lllllllllllllllllllll Defendant-Appellant.

________________________

 Appeal from the United States District Court

 for the Middle District of Florida

 ________________________

(September 21, 2010)

Before BARKETT, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:

Javier Huerta appeals his convictions and sentence for conspiracy to possess

and possession with intent to distribute methamphetamine. After a thorough
review of the record, we affirm.

Huerta was indicted on one count of conspiracy to possess with intent to

distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. § 846,

and three counts of distribution of 5 grams or more of methamphetamine, in

violation of 21 U.S.C. § 841. Manuel Camacho Barcenas was charged as a coconspirator and pleaded guilty; Huerta proceeded to trial.

According to the evidence at trial, Peter Strautman, a convicted drug dealer

who worked as a confidential informant with the DEA, arranged several controlled

buys with Huerta and Barcenas. The deals were captured on audio and video

recordings. In the calls and exchanges, Huerta acted as an interpreter for Barcenas

and arranged the deals. And during one of the buys, Huerta informed Strautman

that he had supplied drugs to a man named Paco, who was Strautman’s previous

supplier. Huerta said that he and Barcenas, “[w]e make a deal sometimes. Half

and half.” Strautman understood this to mean that the two men sold drugs

together. During his work for the DEA, Strautman also arranged controlled buys

with each dealer alone. The controlled buy Strautman attempted to arrange with

Huerta was unsuccessful because, as Huerta later explained to Strautman, Huerta

had seen a suspicious car and cancelled the meeting. Strautman was unable to

reschedule the buy. 

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Huerta testified in his own defense. He explained that he and Barcenas

were friends and that he had been helping tow cars to Barcenas’s mechanics shop. 

He stated that he had been lying in the recorded phone calls to shield Barcenas,

that he was present at the buys only to protect Barcenas, and that he did not

receive any money from the buys. He denied that there was any conspiracy and

explained that the deals mentioned in the recordings were car deals. Huerta then

testified that he had received two letters from Barcenas while the case was

pending. The government objected to the admission of these letters on hearsay

grounds. Defense counsel responded that Barcenas was unavailable because,

when called as a witness, he had invoked his Fifth Amendment right not to testify,

and that the letters were trustworthy because Barcenas had admitted to the

government that he wrote them. The court sustained the government’s objection

and excluded the letters.

The jury convicted Huerta on all counts and the court sentenced him to 120

months’ imprisonment. Huerta now appeals, raising two challenges to his

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convictions and sentence. First, Huerta contends that the district court abused its

The court determined that Huerta’s base offense level was 30, with a 2-level enhancement 1

for obstruction of justice and a 2-level reduction for minor role. With an adjusted offense level of

30 and a criminal history category of I, the guideline range was 97 to 121 months’ imprisonment. 

Because the offense carried a mandatory minimum sentence of 120 months’ imprisonment, 120

months became the low end of the guideline range. 

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discretion by excluding the hearsay evidence. Second, he challenges the

reasonableness of his sentence. We address each in turn.

I. Admission of Hearsay Statements

We review a district court’s rulings on the admissibility of hearsay

testimony for abuse of discretion. United States v. Brown, 441 F.3d 1330, 1359

(11th Cir. 2006). 

Here, Huerta tried to introduce two letters Barcenas wrote to Huerta while

Huerta’s case was pending. In the letters, Barcenas wrote that he was involved in

“deals” and that he acted “because of the consumption of alcohol.” He further

wrote that he would plead guilty, that he “should be responsible for it because no

one else should pay the broken plates of someone else’s,” and that he “assume[d]

the responsibility that you had nothing to do with those charges.” 

The Federal Rules of Evidence permit the admission of a hearsay statement

if

at the time of its making [the statement] so far . . . tended to subject

the declarant to civil or criminal liability . . . that a reasonable person

in the declarant’s position would not have made the statement unless

believing it to be true. A statement tending to expose the declarant to

criminal liability and offered to exculpate the accused is not

admissible unless corroborating circumstances clearly indicate the

trustworthiness of the statement.

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Fed. R. Evid. 804(b)(3). For hearsay evidence to be admissible under this rule,

“(1) the declarant [must be] unavailable; (2) the statement so far tends to subject

the declarant to criminal liability that a reasonable person in his position would

not have made the statement unless he believed it to be true; and (3) the statement

is corroborated by circumstances clearly indicating its trustworthiness.” United

States v. Westry, 524 F.3d 1198, 1214 (11th Cir. 2008) (citation and quotation

omitted). 

Although both Huerta and the government agree that Barcenas was

unavailable under Rule 804(a)(1), Huerta cannot show that the letters were

admissible. The statements are vague and do not inculpate Barcenas to the extent

that he reasonably would not have made the statement unless he believed it to be

true. Moreover, the evidence at trial showed that Huerta and Barcenas were

working together. Thus, the district court did not abuse its discretion in excluding

the hearsay evidence, and we affirm Huerta’s convictions.

II. Reasonableness of Huerta’s Sentence

We review a final sentence for reasonableness, applying the abuse of

discretion standard. United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir.

2005). When a defendant has been given the opportunity to raise an objection and

failed to do so, we review for plain error. United States v. Canty, 570 F.3d 1251,

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1256-57 (11th Cir. 2009) (quotation marks omitted). Under plain-error review, the

defendant initially must establish that the district court committed an error, that the

error was plain, and that the error affected his substantial rights. United States v.

Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). 

Huerta did not object to his sentence as unreasonable and he cannot show

plain error in the sentence imposed. Huerta faced a mandatory minimum sentence,

which is precisely the sentence the court imposed. Nothing permitted the court to

sentence Huerta below this mandatory minimum, and Huerta has offered nothing

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to show that the court erred or that his sentence is unreasonable. 

AFFIRMED.

Generally, a court is bound by the mandatory minimum sentence unless the defendant 2

qualified for a reduction under the safety-valve provision or the government moved for a reduction

based on substantial assistance. Neither circumstance is present here.

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