[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 17-15583

Non-Argument Calendar

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D.C. Docket No. 1:17-cr-20153-RNS-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

JOSE PABLO ORTIZ-SANTIZO,

 Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(March 15, 2019)

Before MARCUS, ROSENBAUM, and EDMONSON, Circuit Judges.

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PER CURIAM: 

Juan Ortiz-Santizo appeals his convictions for (1) conspiracy to possess with 

intent to distribute 50 grams or more of methamphetamine, in violation of 21 

U.S.C. § 846; (2) distribution of 50 grams or more of methamphetamine, in 

violation of 21 U.S.C. § 841(a)(1); and (3) possession with intent to distribute 50 

grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). OrtizSantizo also appeals his total 151-month sentence for his offenses. No reversible 

error has been shown; we affirm.

Briefly stated, this appeal arises from these facts. In December 2016 and 

January 2017, the Broward County Drug Task Force used a confidential informant 

(“CI”) to arrange two controlled drug buys from Ortiz-Santizo. During the first 

controlled drug buy, the CI purchased 82.9 grams of methamphetamine from OrtizSantizo. During the second controlled drug buy -- at Ortiz-Santizo’s direction --

the CI purchased 54.22 grams of methamphetamine from Ortiz-Santizo’s brother. 

Ortiz-Santizo was later arrested on 16 February 2017, after his car broke 

down and was blocking traffic on the highway. When Sergeant Berthet 

approached the car, he smelled marijuana and noticed that Ortiz-Santizo appeared 

nervous and was hugging a backpack. Shortly thereafter, a second officer arrived 

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on the scene with a narcotics-detecting dog, who alerted on the interior of the car 

and on the backpack. The officers conducted a warrantless search of the car and 

seized 111.6 grams of methamphetamine and 11.5 grams of marijuana from the 

backpack. 

I.

On appeal, Ortiz-Santizo contends that the district court erred in denying his 

motion to suppress evidence seized during the warrantless search of his car. OrtizSantizo argues that -- because his car was disabled at the time of the search -- the 

automobile exception is inapplicable.

We review the district court’s denial of “a motion to suppress evidence 

under a mixed standard of review, reviewing the court’s findings of fact for clear 

error and the application of law to those facts de novo.” United States v. Pierre, 

825 F.3d 1183, 1191 (11th Cir. 2016). We will construe the facts in the light most 

favorable to the party who prevailed below. United States v. Nixon, 918 F.2d 895, 

902 (11th Cir. 1990). In considering a ruling on a motion to suppress, we may 

consider the evidence presented at the suppression hearing as well as evidence 

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presented at trial. United States v. Villabona-Garnica, 63 F.3d 1051, 1056 (11th 

Cir. 1995). 

Under the automobile exception to the Fourth Amendment’s warrant 

requirement, police may perform a warrantless search of a car if probable cause 

exists to believe the car contains contraband or evidence of criminal activity. 

California v. Acevedo, 500 U.S. 565, 569 (1991). For the exception to apply, there 

must be both probable cause and exigent circumstances necessitating a search or 

seizure. Nixon, 918 F.2d at 903. We have said, however, that “the requirement of 

exigent circumstances is satisfied by the ‘ready mobility’ inherent in all 

automobiles that reasonably appear to be capable of functioning.” Id. (emphasis in 

original). “The vehicle does not have to be moving at the moment when the police 

obtain probable cause to search.” United States v. Alexander, 835 F.2d 1406, 1409 

(11th Cir. 1988). 

The district court committed no error in denying Ortiz-Santizo’s motion to 

suppress the drugs found during the warrantless search of his car. Sergeant Berthet 

testified that when he first approached Ortiz-Santizo’s car, he detected the odor of 

marijuana and observed that Ortiz-Santizo appeared nervous. Later, a narcoticsdetecting dog alerted to the interior of the car and then, to the backpack that OrtizSantizo had been holding. Based on the totality of the circumstances, there existed 

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a fair probability contraband would be found in Ortiz-Santizo’s car. Probable 

cause existed to search both the car and the backpack. See United States v. 

Tamari, 454 F.3d 1259, 1264-65 (“We have long recognized that ‘probable cause 

arises when a drug-trained canine alerts to drugs.’”).

Exigent circumstances also justified the warrantless search. Although OrtizSantizo’s car was non-operational at the time of the search, it was reasonable to 

believe that the car could soon become mobile. The car was stopped in the middle 

of the highway, evidencing that it had been operational moments before. OrtizSantizo also commented that he had just had the car repaired and the officer 

noticed that the car had a brand-new battery. Besides, Ortiz-Santizo had already 

arranged to have the car towed before the officers arrived on the scene; the car was 

about to become movable. Under these circumstances, it was reasonable to 

conclude that Ortiz-Santizo’s car was readily mobile and, thus, that a warrantless 

search was justified under the automobile exception. See Nixon, 918 F.2d at 903. 

II.

Ortiz-Santizo next challenges the district court’s denial of his motions for a 

judgment of acquittal. “We review de novo a district court’s denial of judgment of 

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acquittal on sufficiency of evidence grounds.” United States v. Rodriguez, 732 

F.3d 1299, 1303 (11th Cir. 2013). In determining 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.” Id. 

We cannot overturn a jury’s verdict unless no “reasonable construction of the 

evidence would have allowed the jury to find the defendant guilty beyond a 

reasonable doubt.” Id.

A.

About his conspiracy conviction, Ortiz-Santizo contends the evidence 

produced at trial was insufficient to demonstrate the existence of an agreement 

between Ortiz and another party. 

To obtain a conviction for conspiracy to distribute a controlled substance 

under 21 U.S.C. § 846, the government must prove, in pertinent part, that a 

conspiracy or agreement existed between the defendant and others. United States 

v. Holt, 777 F.3d 1234, 1259 (11th Cir. 2015). “The existence of a conspiracy may 

be demonstrated by circumstantial evidence such as inferences from the conduct of 

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the defendant or circumstances indicating a scheme or plan.” United States v. 

Bascaro, 742 F.2d 1335, 1359 (11th Cir. 1984). 

Viewed in the light most favorable to the government, the evidence 

presented at trial was sufficient to permit a reasonable factfinder to conclude 

beyond a reasonable doubt that Ortiz-Santizo conspired with others to possess with 

intent to distribute a controlled substance. First, officers observed Ortiz-Santizo 

obtain methamphetamine from a man named Guevara during a controlled buy 

between Ortiz-Santizo and the CI. The government also introduced an email OrtizSantizo sent after his arrest, in which he demanded that his brother convince

Guevara to clear his name and threatened to expose Guevara and Guevara’s

family’s involvement in the conspiracy. This evidence supported a finding that an

ongoing agreement existed between Ortiz-Santizo and Guevara, who was known to 

the officers as a methamphetamine distributor. 

Evidence also supported a finding that an agreement existed between OrtizSantizo and his brother. Because Ortiz-Santizo was out of town when the CI 

contacted him about the second controlled buy, Ortiz-Santizo arranged for his 

brother to complete the sale while Ortiz-Santizo helped facilitate the transaction. 

We acknowledge that a mere buyer-seller relationship or an agreement with 

a CI -- by itself -- is insufficient to establish a conspiracy. See United States v. 

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Wright, 63 F.3d 1067, 1072 (11th Cir. 1995) (explaining that “it takes at least two 

to conspire neither of which may be government agents or informers.”); Bascaro, 

742 F.2d at 1359 (“the existence of a simple buyer-seller relationship alone does 

not furnish the requisite evidence of a conspiratorial agreement.”). The evidence 

produced at trial, however, was sufficient to support a finding that Ortiz-Santizo 

had an agreement with Guevara and with his brother to sell drugs to third persons. 

That the two controlled drug buys involved sales to a CI did not frustrate the 

existence of that conspiracy.

Laboratory results also confirmed that the quantity of methamphetamine 

involved in each of the controlled buys satisfied the 50-gram threshold; thus, each

of the controlled buys would support the conspiracy charged in the indictment. 

B.

About Ortiz-Santizo’s conviction for possession with intent to distribute, he 

contends that insufficient evidence existed to establish that he knew about the 

drugs found in his backpack.

To sustain a conviction for possession with intent to distribute 

methamphetamine, the government must establish three elements: knowledge, 

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possession, and intent to distribute. United States v. Gamboa, 166 F.3d 1327, 1331 

(11th Cir. 1999). All three elements may be proven by circumstantial evidence. 

United States v. Poole, 878 F.2d 1389, 1391-92 (11th Cir. 1989). 

Sufficient evidence existed from which a reasonable jury could conclude 

that Ortiz-Santizo possessed with intent to distribute 50 grams or more of 

methamphetamine. Ortiz-Santizo admitted that the backpack belonged to him. 

Sergeant Berthet also testified that, when he first observed Ortiz-Santizo, OrtizSantizo appeared nervous and was clutching the backpack in front of him. Based 

on this evidence, a jury could infer reasonably that Ortiz-Santizo knew the 

methamphetamine was in his backpack. Moreover, because the drugs were found 

inside Ortiz-Santizo’s backpack and inside Ortiz-Santizo’s car, the jury could also 

infer reasonably that Ortiz-Santizo had constructive possession over the drugs. See 

United States v. Hernandez, 433 F.3d 1328, 1333 (11th Cir. 2005) (“Constructive 

possession exists when a defendant has ownership, dominion, or control over an 

object itself or dominion of control over the premises or the vehicle in which the 

object is concealed.”). Although Ortiz-Santizo testified that the drugs “weren’t

supposed to be there” and did not belong to him, the jury was free to reject that

testimony and to infer that the opposite was true. See United States v. Hasner, 340 

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F.3d 1261, 1272 (11th Cir. 2003) (“A proper inference the jury can make from 

disbelieved testimony is that the opposite of the testimony is true.”).

III.

Ortiz-Santizo next contends that the district court abused its discretion in 

permitting the government to impeach him on cross-examination with a suppressed 

prior statement. 

Before trial, Ortiz-Santizo moved to suppress a statement he made to police 

after his arrest, in which he admitted he had purchased two ounces of 

methamphetamine the night before. The government conceded the statement was

inadmissible during the government’s case-in-chief because the statement was

obtained after Ortiz-Santizo invoked his Miranda* rights. Accordingly, the district 

court granted the motion to suppress but reserved ruling on whether the statement 

could be introduced for impeachment purposes. 

We review for an abuse of discretion the district court’s decision to allow the 

introduction of suppressed evidence for purposes of impeachment. United States 

v. Quesada-Rosadal, 685 F.2d 1281, 1283 (11th Cir. 1982). A “defendant’s 

 

* Miranda v. Arizona, 384 U.S. 436 (1966). 

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statements made in response to proper cross-examination reasonably suggested by 

the defendant’s direct examination are subject to otherwise proper impeachment by 

the government,” including by suppressed evidence inadmissible in the 

government’s case-in-chief. United States v. Havens, 446 U.S. 620, 627-28 

(1980). 

The district court abused no discretion in allowing the government to 

impeach Ortiz-Santizo on cross-examination with his suppressed statement. On 

direct examination, Ortiz-Santizo testified that he was no drug dealer, had never 

sold methamphetamine before the controlled buys, and was merely a drug addict 

who was coerced into acquiring methamphetamine by the CI, who was also his 

romantic partner. On cross-examination, the government -- staying within the 

scope of Ortiz-Santizo’s direct examination -- questioned Ortiz-Santizo about his 

relationship with the CI, about the quantity of drugs he sold to the CI, about his 

text messages with the CI arranging drug sales, and about his association with 

Guevara. 

The government also questioned Ortiz-Santizo about conduct pertinent to the 

credibility of his direct testimony, including that he was later arrested with nearly 

four ounces of methamphetamine in his backpack. When Ortiz-Santizo denied 

knowledge and possession of those drugs, he opened the door for the government 

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to rebut that testimony, including with Ortiz-Santizo’s suppressed statement that he 

had purchased two ounces of methamphetamine at Guevara’s house the night 

before his arrest. On this record, the district court abused no discretion in allowing 

the introduction of the suppressed statement to impeach Ortiz-Santizo’s credibility. 

IV.

Ortiz-Santizo next challenges the district court’s decision permitting the 

government’s expert witness to testify that the quantity of drugs seized from OrtizSantizo was consistent with the distribution of methamphetamine. 

We review the district court’s rulings on the admissibility of expert 

testimony under an abuse-of-discretion standard. United States v. Frazier, 387 

F.3d 1244, 1258 (11th Cir. 2004) (en banc). Under this standard, we will not 

reverse unless the district court’s ruling was “manifestly erroneous.” Id. We must 

affirm unless the district court made a clear error of judgment or applied the 

incorrect legal standard. See id. at 1259. 

An expert witness in a criminal case may not state expressly a conclusion 

about the defendant’s mental state at the time of the offense. United States v. 

Alvarez, 837 F.2d 1024, 1031 (11th Cir. 1988) (interpreting Fed. R. Evid. 704(b)). 

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This rule does not, however, preclude expert testimony that would support an 

inference about the defendant’s mental state, provided that the testimony leaves it 

to the jury to draw the inference. See id. 

The district court abused no discretion in allowing Officer Passman to testify 

that -- based on his experience investigating methamphetamine cases -- the 

quantity of methamphetamine seized from Ortiz-Santizo’s car (111.6 grams) was 

consistent with distribution, not personal use. Officer Passman testified that, on 

average, the amount of methamphetamine sold for personal use is between 0.5 and 

1 gram, and no more than 3.5 grams. Based on his experience, a quantity of 3 or 4 

ounces of methamphetamine would be consistent with distribution. Officer 

Passman expressed no opinion about Ortiz-Santizo’s state of mind in this case. 

Because the jury was left to decide the ultimate issue of whether Ortiz-Santizo had 

the requisite intent to distribute the methamphetamine seized from his car, the 

testimony was permissible under Rule 704(b). See id. 

V.

Ortiz-Santizo challenges his 151-month sentence. He contends that the 

district court erred in calculating the drug quantity attributable to him and, thus in 

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enhancing his base offense level from 32 to 36. We need not address this 

argument, however, because the district court said expressly that it would impose 

the same sentence regardless of whether Ortiz-Santizo’s base offense level was 32 

or 36. See United States v. Barner, 572 F.3d 1239, 1247-48 (11th Cir. 2009) 

(“Where a district judge clearly states that he would impose the same sentence, 

even if he erred in calculating the guidelines, then any error in the calculation is 

harmless.”). 

AFFIRMED.

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