[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-11802

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

TAPARRISH SHAKANE VAILS, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 9:20-cr-80093-KAM-1

____________________

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2 Opinion of the Court 22-11802

Before GRANT, LAGOA, and ANDERSON, Circuit Judges.

PER CURIAM:

Taparrish Vails appeals his conviction and sentence for possession with intent to distribute a controlled substance. On appeal, 

Vails raises the following five arguments: (1) the government’s arguments and presentation of evidence related to his involvement 

in a drug-trafficking organization constructively amended the indictment; (2) the district court abused its discretion by permitting 

the government to introduce evidence of his prior convictions under Fed. R. Evid. 404(b); (3) the district court abused its discretion 

by admitting a backpack because insufficient evidence connected it 

to Vails and it showed indications of tampering; (4) the district 

court clearly erred by applying an enhancement pursuant to 

U.S.S.G. § 3C1.2; and (5) the district court clearly erred in denying 

his request for a minor role reduction under U.S.S.G. § 3B1.2. For 

the following reasons, we affirm.

I.

Regarding the first argument. we review an unobjected-to 

constructive amendment only for plain error. United States v. Madden, 733 F.3d 1314, 1322 (11th Cir. 2013). Under this review, the 

defendant must establish “(1) an error (2) that is plain and (3) that 

has affected [his] substantial rights; and if the first three prongs are 

satisfied, we may exercise discretion to correct the error if (4) the 

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

judicial proceedings.” Id.

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A “fundamental principle” derived from the Fifth Amendment is that “a defendant can only be convicted for a crime charged 

in the indictment” because “[i]t would be fundamentally unfair to 

convict a defendant on charges of which he had no notice.” United 

States v. Keller, 916 F.2d 628, 633 (11th Cir. 1990). The trial court 

may not broaden the charges by constructive amendment. Stirone 

v. United States, 361 U.S. 212, 215-16 (1960). “A constructive amendment occurs when the essential elements of the offense contained 

in the indictment are altered to broaden the possible bases for conviction beyond what is contained in the indictment.” United States 

v. Holt, 777 F.3d 1234, 1261 (11th Cir. 2015). “In evaluating 

whether the indictment was constructively amended,” we review 

the jury instructions “in context to determine whether an expansion of the indictment occurred either literally or in effect.” United 

States v. Castro, 89 F.3d 1443, 1450, 1453 (11th Cir. 1996) (quotation 

marks omitted). However, “evidence that properly was admitted 

as intrinsic to the charged offenses does not impermissibly broaden 

the indictment to include other crimes.” Holt, 777 F.3d at 1261. 

The district court may thus admit evidence that is not part of the 

charged offense if such evidence “pertain[s] to the chain of events 

explaining the context, motive and set-up of the crime” and is 

“linked in time and circumstances with the charged crime, or forms 

an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury.” Id. at 1262.

Section 841(a)(1) of Title 21 makes it unlawful for a person 

to knowingly or intentionally manufacture, distribute, or possess 

with intent to do the same, a controlled substance. 21 U.S.C. 

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§ 841(a). To sustain a conviction for possession with intent to distribute a controlled substance, the government must prove that the 

defendant had (1) knowledge, (2) possession, and (3) intent to distribute. United States v. Hernandez, 743 F.3d 812, 814 (11th Cir. 

2014). “It is well settled that possession of contraband may be constructive as well as actual and may be proven by circumstantial evidence.” United States v. Kincade, 714 F.2d 1064, 1066 (11th Cir. 

1983); see also United States v. Woodward, 531 F.2d 1352, 1360 (11th 

Cir. 2008) (explaining that a defendant’s possession “may be actual 

or constructive, joint or sole”) (quotation marks omitted). To establish constructive possession, the government is required to offer 

evidence showing “ownership or dominion and control over the 

drugs or over the premises on which the drugs are concealed.” 

United States v. Clay, 355 F.3d 1281, 1284 (11th Cir. 2004). 

Here, we conclude that the district court did not err, let 

alone plainly err, because the indictment was not constructively 

amended. The indictment charging Vails with possession with intent to distribute encompassed all forms of possession, and the evidence of Vails’s involvement in a drug-trafficking organization 

provided necessary context to the jury. We now turn to the second 

argument raised on appeal. 

II.

We review the admission of evidence under Rule 404(b) for 

abuse of discretion. United States v. Perry, 14 F.4th 1253, 1274 (11th 

Cir. 2021). Evidence admitted in violation of Rule 404(b) is considered to be harmless error where there is other substantial evidence 

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of the defendant’s guilt. See United States v. Chavez, 204 F.3d 1305, 

1317 (11th Cir. 2000).

Rule 404(b) of the Federal Rules of Evidence prohibits the 

introduction of evidence of a crime, wrong, or other act to “prove 

a person’s character in order to show that on a particular occasion 

the person acted in accordance with the character.” Fed. R. Evid. 

404(b)(1). It does, however, allow such evidence for other purposes, “such as proving motive, opportunity, intent, preparation, 

plan, knowledge, identity, absence of mistake, or lack of accident.” 

Fed. R. Evid. 404(b)(2). “Rule 404(b) is a rule of inclusion, 

and . . . accordingly 404(b) evidence, like other relevant evidence, 

should not be lightly excluded when it is central to the prosecution’s case.” United States v. Kapordelis, 569 F.3d 1291, 1313 (11th 

Cir. 2009) (quotation marks omitted, alteration in original).

We recognize a three-part test to determine whether evidence is admissible under Rule 404(b): (1) the evidence must be relevant to an issue other than the defendant’s character; (2) there 

must be sufficient proof that a jury could find by a preponderance 

of the evidence that the defendant committed the act; and (3) the 

probative value of the evidence must not be substantially outweighed by undue prejudice, as established in Rule 403. United 

States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007); see also Fed. 

R. Evid. 403. The risk of undue prejudice can be reduced by an 

appropriate limiting instruction. United States v. Ramirez, 426 F.3d 

1344, 1354 (11th Cir. 2005); see also United States v. Diaz-Lizaraza, 

981 F.2d 1216, 1225 (11th Cir. 1993) (noting that, where the district 

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court issued a limiting instruction, “any unfair prejudice possibly 

caused by [the evidence’s] introduction was mitigated”).

The first prong of the Rule 404(b) test can be satisfied “where 

the state of mind required for the charged and extrinsic offenses is 

the same.” Edouard, 485 F.3d at 1345. “[B]y pleading not guilty, [a 

defendant] place[s] th[e] [knowledge] element of the § 922(g) offense in issue.” United States v. Jernigan, 341 F.3d 1279, 1281, 1282 

n.7 (11th Cir. 2003). We have held that a prior conviction in which 

the defendant possessed a gun provides a “logical connection between a convicted felon’s knowing possession of a firearm at one 

time and his knowledge that a firearm is present at a subsequent 

time (or, put differently, that his possession at the subsequent time 

is not mistaken or accidental).” Id. at 1281.

Under Federal Rule of Evidence 403, a district court may exclude relevant evidence if its probative value is substantially outweighed by a danger of, inter alia, unfair prejudice. Fed. R. Evid. 

403. In reviewing the third prong of Rule 404(b) admissibility under Rule 403, we “look at the evidence in a light most favorable to 

its admission, maximizing its probative value and minimizing its 

undue prejudicial impact.” Edouard, 485 F.3d at 1344 n.8 (quotation 

marks omitted). When determining whether the danger of unfair 

prejudice substantially outweighs the probative value of extrinsic

act evidence, we consider: (1) the government’s incremental need 

for the evidence to prove guilt beyond a reasonable doubt; (2) the 

similarity of the extrinsic act and the charged offense; and (3) the 

closeness or remoteness in time between the extrinsic act and the 

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charged offense. United States v. Ellisor, 522 F.3d 1255, 1268 (11th 

Cir. 2008). As to the third prong, we “ha[ve] refrained from adopting a bright-line rule with respect to temporal proximity.” United 

States v. Matthews, 431 F.3d 1296, 1311 (11th Cir. 2005); see also 

United States v. Lampley, 68 F.3d 1296, 1300 (11th Cir. 1995) (upholding the admission of Rule 404(b) evidence where the other acts occurred 15 years earlier than the charged offense).

Section 922(g) of Title 18 governs offenses for unlawful possession of a firearm and ammunition and “entails three distinct elements: (1) that the defendant was a convicted felon; (2) that the 

defendant was in knowing possession of a firearm; and (3) that the 

firearm was in or affecting interstate commerce.” Jernigan, 

341 F.3d at 1279; 18 U.S.C. § 922(g)(1). In addition, the Supreme 

Court has held that, “in a prosecution under 18 U.S.C. § 922(g) and 

§ 924(a)(2), the Government must prove both that the defendant 

knew he possessed a firearm and that he knew he belonged to the 

relevant category of persons barred from possessing a firearm.” Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019). 

Here, we conclude that the district court did not abuse its 

discretion by admitting Vails’s previous convictions because, by 

pleading guilty, Vails made his knowledge as to his possession of 

the firearm an issue in the case and his prior felonies were relevant 

to establish that Vails knew he belonged to a category of persons 

prohibited from possessing a firearm. Moreover, his prior convictions were not so prejudicial as to outweigh their probative value, 

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and the district court issued a limiting instruction to minimize any 

prejudice. We now turn to the third argument raised on appeal. 

III.

We review all evidentiary rulings for an abuse of discretion 

and will “defer to the district court’s decisions to a considerable extent.” United States v. Akwuba, 7 F.4th 1299, 1313 (11th Cir. 2021) 

(alteration adopted, quotation marks omitted).

A proponent of evidence “must produce evidence sufficient 

to support a finding that the item is what the proponent claims it 

is.” Fed. R. Evid. 901(a). The government only needs to present 

some competent evidence to support authentication, and such evidence can be purely circumstantial. United States v. Hawkins, 905 

F.2d 1489, 1493 (11th Cir. 1990). This process generally involves 

submitting proof from which a reasonable inference can be drawn 

of the evidence’s original acquisition and later custody, in addition 

to its connection to the accused and the charged offense. United 

States v. Sarmiento-Perez, 724 F.2d 898, 900 (11th Cir. 1984); United 

States v. Garcia, 718 F.2d 1528, 1534 (11th Cir. 1983). Proof of the 

connection of physical evidence with a defendant and gaps in the 

chain of custody go to the weight, not the admissibility, of evidence. Sarmiento-Perez, 724 F.2d at 900. Likewise, “any doubts 

raised concerning the possibility of alteration of contamination of 

the evidence go to the weight and not the admissibility of the evidence.” Ballou v. Henri Studios, Inc., 656 F.2d 1147, 1155 (5th Cir. 

1981). “A district court has discretion to determine authenticity, 

and that determination should not be disturbed on appeal absent a 

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showing that there is no competent evidence in the record to support it.” United States v. Lanzon, 639 F.3d 1293, 1301 (11th Cir. 2011) 

(quotation marks omitted).

Additionally, “the mere fact that it is conceivable that tampering has occurred is not sufficient to require the exclusion of the 

evidence” and a court “need only be satisfied that in reasonable 

probability the [evidence] has not been changed in important respects” to properly admit it. United States v. Daughtry, 502 F.2d 

1019, 1022 n.3 (5th Cir. 1974). 

We conclude that the district court did not abuse its discretion in admitting the backpack and its contents into evidence because the government presented sufficient evidence to connect the 

bag and its contents to Vails. To the extent that Vails asserts issues 

in the bag’s chain-of-custody, these go to the evidence’s weight rather than admissibility. Lastly, Vails does not point to any evidence 

to substantiate his allegations of tampering.

IV.

With regards to the fourth argument, Vails argues that the 

district court clearly erred by applying an enhancement pursuant 

to U.S.S.G. § 3C1.2. When reviewing a challenge to the applicability of the Guidelines, we consider legal issues de novo, reviews factual findings for clear error, and applies the Guidelines to the facts 

with due deference, which is akin to clear-error review. United 

States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010). “For a factual finding to be clearly erroneous, this Court, after reviewing all 

of the evidence, must be left with a definite and firm conviction 

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that a mistake has been committed.” United States v. Matchett, 802 

F.3d 1185, 1191 (11th Cir. 2015) (quotation marks and brackets 

omitted). We may affirm a sentencing enhancement “for any reason supported by the record, even if not relied upon by the district 

court.” United States v. Chitwood, 676 F.3d 971, 975 (11th Cir. 2012) 

(quotation marks omitted).

Under § 3C1.2, a defendant is eligible for a two-level increase 

to his offense level if he “recklessly created a substantial risk of 

death or serious bodily injury to another person in the course of 

fleeing from a law enforcement officer.” U.S.S.G. § 3C1.2. This 

enhancement applies to a defendant based on his “own conduct 

and for conduct that [he] aided or abetted, counseled, commanded, 

induced, procured, or willfully caused.” U.S.S.G. § 3C1.2, comment. (n.5). This application note to § 3C1.2 specifies an exception 

to the generally applicable relevant conduct rule under 

§ 1B1.3(a)(1)(B). United States v. Cook, 181 F.3d 1232, 1235-36 (11th 

Cir. 1999). According to the commentary, reckless “means a situation in which the defendant was aware of the risk created by his 

conduct and the risk was of such a nature and degree that to disregard that risk constituted a gross deviation from the standard of 

care that a reasonable person would exercise in such a situation.” 

See U.S.S.G. § 3C1.2, comment. (n.2) (cross-referencing U.S.S.G. 

§ 2A1.4, comment. (n.1)). The commentary to § 3C1.2 also explains that “‘during flight’ is “to be construed broadly and includes 

preparation for flight.” U.S.S.G. § 3C1.2, comment. (n.3). 

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We have held that “flight alone is insufficient to warrant an 

enhancement under section 3C1.2” and that it is the defendant’s 

conduct, not that of the pursuing officers, that must recklessly create the substantial risk of death or serious bodily injury to others. 

United States v. Wilson, 392 F.3d 1243, 1247 (11th Cir. 2004). We

have also explained that this enhancement “requires only that there 

was a substantial risk that something could have gone wrong and 

someone could have died or been seriously injured.” Matchett, 802 

F.3d at 1198.

Here, we conclude that the district court did not clearly err 

in applying the enhancement under U.S.S.G. § 3C1.2 because the 

evidence adduced at trial showed that Vails had accelerated away 

from the officers while McGillicuddy was within arms’ reach of the 

vehicle, thus placing McGillicuddy at risk of serious bodily harm. 

We now turn to the final argument raised on appeal. 

V.

Vails argues on appeal that the district court clearly erred in 

denying his request for a minor role reduction under U.S.S.G. 

§ 3B1.2. We review the district court’s determination of a defendant’s role for clear error. United States v. De Varon, 175 F.3d 930, 937 

(11th Cir. 1999) (en banc). The district court has “considerable discretion in making this fact-intensive determination.” United States 

v. Boyd, 291 F.3d 1274, 1277-78 (11th Cir. 2002). As long as the 

“court’s decision is supported by the record and does not involve a 

misapplication of law,” the “choice between two permissible views 

of the evidence as to the defendant’s role in the offense will rarely 

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constitute clear error.” United States v. Cruickshank, 837 F.3d 1182, 

1192 (11th Cir. 2016) (internal quotation marks omitted).

Section 3B1.2 of the U.S. Sentencing Guidelines directs the 

sentencing court to decrease a defendant’s offense level by two levels “[i]f the defendant was a minor participant in any criminal activity.” U.S.S.G. § 3B1.2. A minor participant is one “who is less 

culpable than most other participants in the criminal activity, but

whose role could not be described as minimal.” Id., comment. 

(n.5). 

In determining whether to apply an adjustment, courts consider the totality of the circumstances and the following non-exhaustive factors:

(i) the degree to which the defendant understood 

the scope and structure of the criminal activity;

(ii) the degree to which the defendant participated 

in planning or organizing the criminal activity;

(iii) the degree to which the defendant exercised 

decision-making authority or influenced the 

exercise of decision-making authority;

(iv) the nature and extent of the defendant’s participation in the commission of the criminal activity, including the acts the defendant performed and the responsibility and discretion 

the defendant had in performing those acts;

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(v) the degree to which the defendant stood to 

benefit from the criminal activity.

Id., comment. (n.3(C)). Additionally, the district court must consider: (1) the defendant’s role in the relevant conduct for which he 

has been held accountable for at sentencing; and (2) his role compared to that of the other participants in the relevant conduct. 

Cruickshank, 837 F.3d at 1192. “[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.” De 

Varon, 175 F.3d at 941.

The defendant has the burden of proving his mitigating role 

in the offense by a preponderance of the evidence. Id. at 939. Determining if a defendant played a minor role in the offense is a 

fact-intensive inquiry “where no one factor is more important than 

another.” Cruickshank, 837 F.3d at 1195 (internal quotation marks 

omitted). “[A] district court is not required to make any specific 

findings other than the ultimate determination of the defendant’s 

role in the offense.” De Varon, 175 F.3d at 940.

Here, we conclude that the district court did not clearly err 

in declining to grant Vails a minor role reduction because his base 

offense level was calculated using the drugs found in the backpack, 

thus only attributing to him is actual conduct. Moreover, Vails 

cannot point to a broader criminal scheme and assert that he was a 

minor participant in that scheme to qualify for the reduction.

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* * * *

For the foregoing reasons, we affirm the conviction and sentence.

AFFIRMED.

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