FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JAN 31, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-15580

Non-Argument Calendar

________________________

D. C. Docket No. 05-60050-CR-AJ

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

KELLY CINEUS, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(January 31, 2007)

Before TJOFLAT, ANDERSON and HULL, Circuit Judges.

PER CURIAM:

Kelly Cineus appeals his conviction and 108-month term of imprisonment
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and $2,000 fine for importation of 500 grams or more of cocaine, in violation of 21

U.S.C. § 952(a). On appeal, Cineus argues that he was denied his right to a fair

and impartial jury and to equal protection because the government used four of its

peremptory challenges to strike prospective African-American jurors from the jury

without legitimate cause, in violation of Batson v. Kentucky, 476 U.S. 79, 106

S.Ct. 1712, 90 L.Ed.2d 69 (1986). Second, Cineus argues that the evidence was

not sufficient to support his conviction of importation of cocaine because the

government failed to prove that he had knowledge that the cocaine was in his

luggage. Finally, Cineus argues that the $2,000 fine rendered his sentence

unreasonable, and cites to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738,

160 L.Ed.2d 621 (2005), and the sentencing factors set forth in 18 U.S.C.

§ 3553(a), as the appropriate standard of review. Upon review of the record, and

upon consideration of the parties’ briefs, we discern no reversible error.

I.

We review “the resolution of a Batson challenge giv[ing] great deference to

a district court’s finding as to the existence of a prima facie case. De novo review

is inappropriate.” United States v. Ochoa-Vasquez, 428 F.3d 1015, 1039 (11th Cir.

2005). Moreover, as the district court’s determination of the reason for a juror’s

dismissal is a finding of fact, we will not overturn it unless it is clearly erroneous
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or appears to have been guided by improper principles of law. Id. (citation and

quotation omitted).

The Supreme Court has held that “[p]urposeful racial discrimination in

selection of the venire violates a defendant’s right to equal protection.” Batson,

476 U.S. at 86, 106 S.Ct. at 1717. “Batson established the . . . three-part inquiry

for evaluating whether a peremptory strike was motivated by rac[e] . . . . First, the

district court must determine whether the party challenging the peremptory strikes

has established a prima facie case of discrimination by establishing facts sufficient

to support an inference of racial discrimination.” Ochoa-Vasquez, 428 F.3d at

1038 (internal citations omitted). 

If the objector makes a prima facie showing, the burden then shifts at

step two to the striker to articulate a race-neutral explanation for the

challenged strike. However, the ultimate burden of persuasion rests

with, and never shifts from, the opponent of the strike. Thus, even if

the [striker] produces only a frivolous or utterly nonsensical

justification for its strike, the case does not end-it merely proceeds to

step three. At step three, the district court determines the

persuasiveness of the justification offered by the striker and decides

whether the objector has carried its burden of proving purposeful

discrimination.

Id. at 1038-39 (citations and quotations omitted).

Because the district court elicited nondiscriminatory reasons for the exercise

of the prosecution’s peremptory strikes, we review the prosecutor’s articulation,

and the judge’s acceptance, of the stated justifications for the strikes. Hernandez v.
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New York, 500 U.S. 352, 358, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991)

(plurality opinion); see United States v. Houston, 456 F.3d 1328, 1335-36 (11th

Cir. 2006). In this case, it appears that the government met its burden of

production in setting forth race-neutral explanations for using four of its six

peremptory strikes against prospective African-American jurors. See Purkett v.

Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995).

Although Cineus asserted that the prosecution’s reasons for striking some

African-American jurors were pretextual, he did not introduce any evidence

tending to discredit the government’s proffered explanations or otherwise establish

pretext. See Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196

(2005). Furthermore, the record shows that the government did not object to at

least three prospective African-American jurors, and, ultimately, two AfricanAmerican jurors sat on the jury. Without more, Cineus’s allegation based solely on

the number of prospective African-American jurors stricken from the venire does

not establish that the government engaged in racial discrimination. See Central

Ala. Fair Housing Ctr, Inc., v. Lowder Realty Co., 236 F.3d 629, 636 (11th Cir.

2000) (“[T]he mere fact of striking a juror or a set of jurors of a particular race

does not necessarily create an inference of racial discrimination.”). Therefore,

Cineus has failed to demonstrate that the district court clearly erred in this respect.
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II.

We review a challenge to the sufficiency of evidence de novo. United States

v. Gunn, 369 F.3d 1229, 1234 (11th Cir.) cert. denied, 543 U.S. 937 (2004). 

Moreover, credibility determinations are left to the jury, and as long as the

testimony is not incredible as a matter of law, we must accept the jury’s

conclusions. United States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997). We

must view the evidence in the light most favorable to the jury’s verdict, and accept

reasonable inferences and credibility choices by the fact-finder. United States v.

Quilca-Carpio, 118 F.3d 719, 720 (11th Cir. 1997) (internal quotations and citation

omitted). 

Section 952(a) prohibits the importation of any controlled substance into the

United States. 21 U.S.C. § 952(a). A charge under § 952(a) requires proof that the

defendant had knowledge that he was importing a controlled substance. United

States v. Peart, 888 F.2d 101, 104 (11th Cir. 1989). Direct evidence of intent is

not necessary, however, as knowledge can be inferred from circumstantial

evidence. Quilca-Carpio, 118 F.3d at 721. 

Cineus’s conviction was supported by the evidence. Although it is true that

the government did not introduce direct evidence showing that Cineus knew the

two suitcases contained cocaine, this argument is not fatal to the government’s
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case. See Quilca-Carpio, 118 F.3d at 721. Here, the surrounding circumstances

provide ample circumstantial evidence to support the jury’s verdict. The evidence

at trial showed that Cineus’s behavior at the primary customs check point was so

suspicious that the customs officer referred him for customs inspection. In the

secondary inspection, Cineus admitted to owning the two suitcases and the

contents therein, and having packed the suitcases. When the customs officers

noticed the unusual weight of the partition in Cineus’s luggage, Cineus began to

question the officers and make statements that a reasonable jury could understand

were meant to divert the officers’ attention from the luggage under immediate

inspection. Three separate compartments containing a significant amount of

cocaine—four kilograms—were found in Cineus’s two suitcases. Based on these

facts, a reasonable jury could conclude beyond a reasonable doubt that a person

who is caught with luggage containing a large amount of drugs knew of the

presence of the drugs. See Quilca-Carpio, 118 F.3d at 721-22. In addition, a

reasonable jury could infer from the quantity of drugs seized that a “prudent

smuggler” was not likely to entrust such valuable cargo to an innocent person

without that person’s knowledge and consent. See id. Moreover, the testimonial

evidence at trial revealed that Cineus had told numerous conflicting stories, and

therefore a reasonable jury could choose to disbelieve Cineus’s testimony that he
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did not have knowledge of the cocaine in his luggage. Because a reasonable jury

could find beyond a reasonable doubt that Cineus intended to import cocaine into

the United States in violation of § 952(a), we affirm his conviction. 

III.

We review a fine set by the district court for clear error. United States v.

Lombardo, 35 F.3d 526, 527 (11th Cir. 1994). The defendant has the burden of

proving inability to pay a fine. United States v. Hernandez, 160 F.3d 661, 665

(11th Cir. 1998). 

A sentence to pay a fine may be imposed in addition to any other sentence. 

18 U.S.C.A. § 3551(b). The statutory maximum fine is $2,000,000. 21 U.S.C.

§ 960(b)(2)(B). Section 5E1.2(a) provides that “[t]he court shall impose a fine in

all cases, except where the defendant establishes that he is unable to pay and is not

likely to become able to pay.” Here, Cineus was scored an offense level of 30, for

which the sentencing guidelines recommend a fine of $15,000 to $2,000,000. 

U.S.S.G. § 5E1.2(c)(2-4). 

If a district court determines, however, that the defendant could not pay, and

would not likely become able to pay, a fine within the applicable range, the district

court may impose a sentence outside the recommended guideline range. U.S.S.G.

§ 5E1.2(f). The guidelines provide a list of seven factors that the court must
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consider when setting a fine. U.S.S.G. § 5E1.2(d). These factors include:

defendant’s income; earning capacity; financial resources; the burden on the

defendant and his dependents; pecuniary loss inflicted on others as a result of the

offense; whether restitution is ordered; the need to deprive the defendant of illegal

gains; and the need to promote respect for the law, provide just punishment, and

adequate deterrence. U.S.S.G. § 5E1.2(d). Evidence that a defendant has failed to

disclose the existence of assets to the court may support a determination that he is

able to pay a fine with those undisclosed assets. United States v. Rowland, 906

F.2d 621, 624 (11th Cir. 1990). Although the representation of a defendant by

appointed counsel may indicate his inability to pay, that fact is not determinative. 

United States v. Long, 122 F.3d 1360, 1366 n.8 (11th Cir. 1997); U.S.S.G. §

5E1.2, comment. (n.3). 

While the district court did not make explicit findings of fact regarding

Cineus’s ability to pay, the hearing did provide an adequate record to enable us to

conduct a meaningful review. See United States v. Alston, 895 F.2d 1362, 1374

(11th Cir. 1990). First, the PSI showed that Cineus claimed ownership of $2,000

worth of jewelry when arrested, and he admitted, when objecting to the PSI, that he

had other items of jewelry with an undetermined value. Second, the district court

relied on the fact that Cineus did not provide the probation office with sufficient
 After United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 765, 160 L.Ed.2d 621 1

(2005), we review sentences under the advisory guideline regime for “unreasonable[ness].”

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information regarding his financial status when it imposed his fine. See Rowland,

906 F.2d at 624. The district court departed downward from the guideline range of

$15,000 to $2,000,000 to impose a $2,000 fine because there was not sufficient

information to confirm Cineus’s ability to pay. Moreover, the court provided that

if Cineus—who was in his mid-thirties and good health at sentencing—could not

pay the fine immediately, he could pay it over time by arrangement through the

Inmate Financial Responsibility Program. Thus, over the course of Cineus’s nine

years of incarceration and four years of supervised release, he would have to pay

less than $20 per month to satisfy the $2,000 fine. Cf. Long, 122 F.3d at 1367

(upholding fine amounting to $56 per month over period of imprisonment and

supervised release).

For the reasons stated above, the district court did not clearly err in imposing

a $2,000 fine as part of Cineus’s sentence, and because no other circumstances

suggest that Cineus’s sentence was unreasonable, we affirm his sentence in this 1

respect.

AFFIRMED.