USA v. Derrick Alfondso Morley

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12988
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DERRICK ALFONDSO MORLEY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cr-20519-DPG-2
____________________
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2 Opinion of the Court 22-12988
Before WILSON, L UCK , and L AGOA , Circuit Judges.
L AGOA , Circuit Judge:
A jury convicted Derrick Morley of conspiracy to possess
with intent to distribute five hundred grams or more of cocaine, in
violation of 21 U.S.C. § 846, and possession with intent to distribute
five hundred grams or more of cocaine, in violation of 21 U.S.C.
§ 841(a)(1). For each count, Morley was sentenced to a term of 60
months’ imprisonment, to be served concurrently. Morley now
appeals his convictions and sentence, arguing that: (1) the district
court erred in denying his motion to suppress evidence that was
the fruit of an unlawful search; (2) the trial evidence was insuffi-
cient to support his convictions; (3) the district court erred in
providing a deliberate ignorance jury instruction; and (4) the dis-
trict court erred in denying him a safety valve sentence reduction
under 18 U.S.C. § 3553(f). After carefully considering the parties’
arguments and with the benefit of oral argument, we affirm Mor-
ley’s convictions and sentence.
I. FACTUAL & PROCEDURAL BACKGROUND
We begin with the government’s trial evidence as to two
separate cocaine deals that led to Morley’s arrest. The first deal
took place on August 6, 2021, when Morley’s associate and code-
fendant, Valentino Edgecombe, sold half a kilogram of cocaine to
a paid FBI confidential informant (“Fred”). The FBI learned, in
early August 2021, that Edgecombe, a Bahamian national, had been
in South Florida “looking to try to get off some dope.” Based on
this information, Fred, at the FBI’s direction, arranged to meet
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22-12988 Opinion of the Court 3
Edgecombe in the parking lot of a Miami shopping mall, outside of
a Bass Pro Shops. With law enforcement officers surveilling, Fred
bought half a kilogram of cocaine from Edgecombe for $14,000.
Following the first cocaine deal, Fred tried to negotiate a big-
ger deal for six kilograms of cocaine. On September 22, 2021, on a
recorded phone call, Fred told Edgecombe that he had the money
ready to buy more cocaine. About ten minutes later, on a second
recorded phone call, Edgecombe offered to send Fred “straight to
the person” with the cocaine. Edgecombe explained, however,
that the person would only relinquish the cocaine if Edgecombe
first cleared his debt, which he’d previously said he owed to “the
guy who was holding the dope.”
About an hour after the second recorded phone call, law en-
forcement observed Edgecombe meet up with Morley in the park-
ing lot of a Fort Lauderdale hotel where Edgecombe was staying.
Morley arrived in a maroon BMW, which law enforcement later
confirmed that he owned. Morley parked near Edgecombe, en-
tered Edgecombe’s car, and they drove off together. Expecting a
deal to occur, law enforcement tracked Edgecombe and Morley
from the hotel, first to a car parts store and then to a Sam’s Club.
However, no deal took place that day.
Instead, the second deal happened six days later on Septem-
ber 28, 2021. The day prior, in a recorded phone call, Edgecombe
again told Fred that he had to take him straight to his cocaine
source to clear his debt and make the deal. Fred agreed to pay
$28,000 per kilogram of cocaine, and the two decided they would
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4 Opinion of the Court 22-12988
meet up the next day and go together to the cocaine source. On
the morning of the deal, Edgecombe sent a WhatsApp message to
Fred indicating that he could sell him three kilograms of cocaine.
Later that evening, before meeting Edgecombe, Fred met
with law enforcement to prepare for a “controlled evidence pur-
chase arrest operation.” Law enforcement gave Fred a hat
equipped with a covert videorecording device and a backpack con-
taining money for the deal. Law enforcement also told Fred to per-
suade Edgecombe to meet him in “a specific part” of a parking lot
of a Home Depot rather than going with Edgecombe to his source.
Fred arrived at the Home Depot and, to coax Edgecombe
into meeting him there, told Edgecombe that his car battery “was
dead” and that his key “won’t crank.” Edgecombe ultimately
agreed over the phone to meet Fred at the Home Depot to com-
plete the deal. So, Fred sent a text message to Edgecombe with the
address of the Home Depot.
Edgecombe arrived at the Home Depot at around 8:30 p.m.
and parked his car next to Fred’s car. Fred asked whether
Edgecombe had the cocaine with him, and Edgecombe responded,
“Yeah someone is right there” and promised “[i]t’s coming.”
Edgecombe then tried to persuade Fred to get in the car with him,
but Fred refused, stating “I can’t get in the car with you. I got too
much money. I don’t got no gun.” Fred told Edgecombe to “tell
[his] peoples” he can only get in Edgecombe’s car if he sees the co-
caine first.
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22-12988 Opinion of the Court 5
Minutes later, Morley arrived in his maroon BMW and
“trolled through the parking lot.” He parked his car, got out, and
quickly walked toward a nearby Wendy’s restaurant. Edgecombe
instructed Fred to “[g]o get it” from Morley’s passenger seat. Fred
retrieved a “small briefcase” from Morley’s car and brought it to
his car, confirming that it contained three kilograms of cocaine.
In the meantime, Morley tried to enter the Wendy’s, but the
door was locked, so he paced back and forth outside. All the while,
Morley kept looking back toward the Home Depot parking lot:
“[H]e just kept looking over his shoulder and then he walked into
. . . [t]he driveway area of Wendy’s, and he just kind of lingered in
the area kind of like looking at the BMW, just watching it.” After
several minutes, Morley walked across the street to help a family
with a broken-down car.
After Fred gave Edgecombe $84,000 for the cocaine, law en-
forcement arrested Edgecombe. Law enforcement then arrested
Morley across the street.
Incident to his arrest, agents seized Morley’s cellphone, got
a search warrant, and accessed his phone. The search revealed ex-
tensive communications between Morley and Edgecombe leading
up to the second cocaine deal, as well as evidence that Morley had
acted on that communication. For instance, Morley and
Edgecombe called each other fifteen times on the night of Septem-
ber 28. Edgecombe also sent the address of the Home Depot to
Morley in a text message, which came two minutes after Fred had
sent the same address to Edgecombe. Data from Morley’s phone
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6 Opinion of the Court 22-12988
showed that he looked up directions from his home in Fort Lauder-
dale to the Home Depot two minutes after Edgecombe had sent
him the address.
Edgecombe and Morley had also communicated in the lead-
up to the first cocaine deal. On August 3, 2021, Edgecombe texted
Morley, “i want you ride with me to deal with something also make
yourself available” and “whenever i call you i want ride with me.”
Then, on the day of the first deal, Edgecombe sent Morley a mes-
sage with the address of the same Bass Pro Shops where Fred met
Edgecombe.
A grand jury returned a three-count indictment charging
Morley with conspiring to possess with intent to distribute five
hundred grams or more of cocaine in violation of 21 U.S.C. § 846
(Count 1) and possessing with intent to distribute five hundred
grams or more of cocaine in violation of 21 U.S.C. § 841(a)(1)
(Count 3).
Morley moved to suppress the cocaine that Fred, at
Edgecombe’s direction, took from Morley’s vehicle without a war-
rant. The government opposed Morley’s suppression motion. The
government argued that the automobile exception to the Fourth
Amendment’s warrant requirement applied because there was a
fair probability that Fred would find contraband in Morley’s car.
The government noted that Fred and Edgecombe “had negotiated
an $84,000 drug deal, and Edgecombe—who had previously sold
[Fred] half a kilogram of cocaine—told [Fred] where to find the
drugs.” Thus, the government concluded, Fred reasonably
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22-12988 Opinion of the Court 7
believed he would find drugs in Morley’s car. In any event, the
government added, the consent exception applied because Fred
reasonably believed Edgecombe had the authority to direct him to
search Morley’s car. Morley argued that neither of the two rele-
vant exceptions to the Fourth Amendment’s warrant requirement
applied to Fred’s search of his car.
The district court held an evidentiary hearing at which Mi-
ami-Dade Detective and FBI Organized Crime Task Force Officer
Wendell Johnson testified. After hearing the officer’s testimony,
the district court denied Morley’s motion. First, the district court
found that there was probable cause to believe Morley’s car con-
tained contraband or evidence of a crime because Edgecombe and
Fred “picked specific remote locations” for their drug deals, and
“it’s really hard to believe that . . . [Morley] pulled up in close prox-
imity” by happenstance. And second, the district court found that
apparent authority existed under the circumstances because “the
drugs were retrieved exactly where Mr. Edgecombe said that they
would be.”
Morley proceeded to a four-day jury trial. The govern-
ment’s proposed jury instructions included the pattern instruction
on deliberate ignorance. At the charge conference, Morley ob-
jected to the government’s proposed deliberate ignorance instruc-
tion. He contended that the record did not support the instruction
because “[t]here ha[d] been no proof of any evidence in reference
to fingerprints or . . . DNA” and “the testimony on exactly where
the bag was located and how it was taken out of the car is extremely
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8 Opinion of the Court 22-12988
wishy-washy.” In response, the government argued that deliberate
ignorance was “an alternative proof,” which was “consistent with
the evidence that Edgecombe had him drive a bag to the Home
Depot, and he never made any attempt to ask Edgecombe what
was in that bag, despite the multiple calls they had.” The district
court deferred ruling on Morley’s objection.
After the close of the evidence, the district court decided to
give the jury instruction because the evidence “equally could be
consistent with actual knowledge or deliberate ignorance.” The
district court pointed to Morley’s actions, like walking away from
the car, and the way the drugs were packaged. The instruction
mirrored the government’s proposed instruction.
During trial, Morley twice moved for a judgment of acquit-
tal under Federal Rule of Criminal Procedure 29(a). The district
court denied both of his motions. The jury ultimately found him
guilty as charged in the indictment. Afterward, Morley moved for
a judgment of acquittal notwithstanding the verdict under Rule
29(c). The district court denied his motion in a paperless order.
Before sentencing, the United States Probation Office pre-
pared a Presentence Investigation Report (“PSI”) using the 2021
Sentencing Guidelines Manual. The PSI held Morley accountable
for 3.518 kilograms of cocaine (about half a kilogram for the August
6 deal and three kilograms for the September 28 deal), resulting in
a total offense level of 28. It also assessed three criminal history
points based on Morley’s prior 37-month sentence for conspiracy
to import 100 kilograms or more of marijuana. With three criminal
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22-12988 Opinion of the Court 9
history points, Morley fell into criminal history category II. To-
gether, Morley’s total offense level and criminal history category
produced a guideline range of 87 to 108 months’ imprisonment.
Through his trial attorney, Morley filed several objections to
the PSI’s description of his offense conduct. Despite the jury’s ver-
dict, Morley maintained his innocence and “denied all knowledge”
of Edgecombe’s sale of cocaine to Fred. In support, Morley at-
tached a post-trial polygraph examination report, which claimed
Morley “was truthful” in denying his knowledge of the conspiracy
and the cocaine. Morley attached the full version of the polygraph
examiner’s report to a motion for a downward variance filed a cou-
ple of weeks later.
A new attorney later entered his appearance to represent
Morley for sentencing. Through his sentencing attorney, Morley
filed additional objections to the PSI in which, among other things,
he argued for a base offense level of 26, because the evidence only
supported his responsibility for the September 28 deal, and a role
reduction under U.S.S.G. § 3B1.2. Morley also moved to continue
his sentencing hearing because his sentencing attorney, unlike his
trial attorney, believed that he might qualify for relief from the
mandatory minimum sentence under 18 U.S.C. § 3553(f). Known
as the safety valve, that statute allows the district court to impose
a sentence below the mandatory minimum sentence for drug
crimes if the defendant meets five criteria. § 3553(f)(1)–(5). Two
of the statutory criteria are relevant here. First, under § 3553(f)(1),
the district court must find that:
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10 Opinion of the Court 22-12988
(1) the defendant does not have—
(A) more than 4 criminal history points, ex-
cluding any criminal history points resulting
from a 1-point offense, as determined under
the sentencing guidelines;
(B) a prior 3-point offense, as determined un-
der the sentencing guidelines; and
(C) a prior 2-point offense, as determined un-
der the sentencing guidelines[.]
Second, under § 3553(f)(5), the district court must find that
the defendant truthfully provided to the government “all infor-
mation and evidence the defendant has concerning the offense or
offenses that were part of the same course of conduct or of a com-
mon scheme or plan.”
As for § 3553(f)(1), Morley argued that his prior three-point
offense for conspiracy to import marijuana did not preclude him
from relief because the safety valve’s criminal- history-point provi-
sion is “conjunctive.” The safety valve, he argued, only excludes
defendants who have all three things: (A) more than four criminal
history points, excluding any points from one-point offenses, (B) a
prior three-point offense, and (C) a prior two-point violent offense.
And because he did not have more than four criminal history points
or a prior two-point violent offense, he could qualify for relief if the
court gave him time to submit a truthful statement to the govern-
ment.
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After the district court continued Morley’s sentencing hear-
ing, he submitted a written safety valve statement in an attempt to
comply with § 3553(f)(5). In his statement, Morley again claimed
he did not know he had delivered cocaine to a drug deal. He ex-
plained that, when he arrived at the Home Depot, he “walked to a
nearby Wendy’s for something to eat” and left his car unlocked
“because the locks did not work (as shown in the trial) in an at-
tempt to buy some food.” He pointed to his post-arrest statements
and the polygraph test for corroboration of his lack of knowledge.
But in the end, he admitted, whether it “was naïve, stupid or com-
pletely negligent,” he “did bring the bag which contained cocaine
in this case to the parking lot of the Home Depot,” and he accepted
full responsibility for it.
At sentencing, the district court granted two of Morley’s ob-
jections to the PSI’s offense-level calculation. First, it found Morley
responsible for 3, rather than 3.518, kilograms of cocaine, which
reduced his base offense level to 26 under U.S.S.G. § 2D1.1(c)(7).
Second, it awarded Morley a two-level minor role reduction under
U.S.S.G. § 3B1.2, producing a new total offense level of 24.
The district court then found Morley did not qualify for
safety-valve relief both because of his criminal history and his fail-
ure to truthfully provide the government with all the information
he had concerning his offenses. As to his criminal history, the dis-
trict court interpreted § 3553(f)(1) as “disjunctive,” meaning a de-
fendant must not have any of (1) more than four criminal history
points, (2) a prior three-point offense, or (3) a prior two-point
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12 Opinion of the Court 22-12988
violent offense to qualify for relief. And because Morley had a prior
three-point offense, the court found that he was not safety-valve
eligible. As to his statement, the district court agreed with Morley’s
contention that the government’s “belief regarding truthfulness”
and “the jury’s findings” did not prevent it from finding his state-
ment truthful. Still, the district court disagreed that Morley pro-
vided a truthful and complete statement under § 3553(f)(5), partic-
ularly considering the government’s “strong circumstantial case.”
The district court found that Morley’s total offense level of
24 and his criminal history category of II produced a guideline
range of 57 to 71 months. Because the mandatory minimum sen-
tence for his offenses was 60 months, however, the district court
calculated the guideline range as 60 to 71 months. The govern-
ment advocated for a 65-month term of imprisonment, citing Mor-
ley’s prior 37-month sentence for his federal drug conviction and
the need to promote deterrence, respect for the law, “and send a
message that the defendant should not be dealing with drugs.”
Morley asked for the mandatory minimum sentence of 60 months.
Before the district court imposed its sentence, it allowed Morley to
provide a statement.
The district court sentenced Morley to two concurrent
terms of 60 months’ imprisonment on both counts, the mandatory
minimum sentence for each count under § 841(b)(1)(B)(ii). This
timely appeal followed.
II. STANDARDS OF REVIEW
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22-12988 Opinion of the Court 13
A district court’s denial of a motion to suppress evidence is
reviewed under a mixed standard. United States v. Jiminez, 224 F.3d
1243, 1247 (11th Cir. 2000). We review the district court’s findings
of fact under the clearly erroneous standard and its application of
law to those facts de novo. Id. We also give “due weight” to the
inferences that the district court and law enforcement officers draw
from the facts. Ornelas v. United States, 517 U.S. 690, 699 (1996).
When considering a ruling on a motion to suppress, we must con-
strue all facts in the light most favorable to the party prevailing in
the district court. United States v. Behety, 32 F.3d 503, 510 (11th Cir.
1994).
“We review de novo a [d]istrict [c]ourt’s denial of judgment
of acquittal on sufficiency of evidence grounds, considering the ev-
idence in the light most favorable to the [g]overnment, and draw-
ing all reasonable inferences and credibility choices in the [g]overn-
ment’s favor.” United States v. Capers, 708 F.3d 1286, 1296 (11th Cir.
2013) (emphasis omitted). We must affirm if “after viewing the ev-
idence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime[s]
beyond a reasonable doubt.” United States v. Hernandez, 433 F.3d
1328, 1335 (11th Cir. 2005) (emphasis omitted) (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)).
We also review de novo whether the circumstances of a par-
ticular case rendered it appropriate to instruct the jury on deliber-
ate ignorance. United States v. Stone, 9 F.3d 934, 937 (11th Cir. 1993).
But our review of jury instructions is deferential, and we will
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14 Opinion of the Court 22-12988
reverse only “if we are left with a substantial and eradicable doubt
as to whether the jury was properly guided in its deliberations.”
United States v. Crabtree, 878 F.3d 1274, 1289 (11th Cir. 2018) (quot-
ing United States v. Steed, 548 F.3d 961, 977 (11th Cir. 2008)).
III. ANALYSIS
On appeal, Morley argues that: (1) the district court erred in
denying his motion to suppress the evidence of the briefcase as the
fruit of an unlawful search; (2) the evidence at trial was insufficient
to support his convictions; (3) the district court erred in providing
a deliberate ignorance jury instruction; and (4) the district court
erred in denying him a safety valve sentence reduction. We ad-
dress each of his challenges in turn.
A. The Motion to Suppress
Morley argues that Fred’s retrieval of the briefcase from the
passenger seat of Morley’s car was an unconstitutional search in
violation of the Fourth Amendment. It is undisputed that Fred’s
actions amounted to a warrantless search that implicated the
Fourth Amendment’s protections. We must determine, however,
whether any exception to the Fourth Amendment’s warrant re-
quirement rendered the search constitutionally permissible. The
district court specifically found that two exceptions applied: the au-
tomobile exception and the consent exception by way of apparent
authority.
As an initial matter, Morley mischaracterizes the automobile
and apparent authority doctrines as requirements that must be met
for a valid search. Those doctrines, however, are separate
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22-12988 Opinion of the Court 15
exceptions to the Fourth Amendment’s warrant requirement, and
either of which may provide an independent basis for us to affirm
the denial of Morley’s suppression motion. Here, we conclude that
the district court did not abuse its discretion in finding that the au-
tomobile exception applied.
The automobile exception allows law enforcement to con-
duct a warrantless search of a vehicle if (1) the vehicle is readily
mobile and (2) law enforcement has probable cause to search it.
United States v. Lindsey, 482 F.3d 1285, 1293 (11th Cir. 2007). All
that is necessary to satisfy the first element is that the automobile
is operational. United States v. Watts, 329 F.3d 1282, 1286 (11th Cir.
2003). In United States v. Nixon, 918 F.2d 895 (11th Cir. 1990), this
Court explained that “ready mobility” is “inherent in all automo-
biles that reasonably appear to be capable of functioning.” Id. at
903 (emphasis in original); see also United States v. Alexander, 835
F.2d 1406, 1409 (11th Cir. 1988) (stating that the vehicle need not
be moving at the moment when police obtain probable cause to
search and that the ability of a vehicle to become mobile is suffi-
cient). That requirement is met here because Morley drove the car
to the scene, nor does Morley challenge that his vehicle was readily
mobile. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680
(11th Cir. 2014) (noting that a party abandons an issue by not rais-
ing it on appeal).
Turning to the second element, probable cause exists when,
“under the totality of the circumstances, there is a fair probability
that contraband or evidence of a crime will be found in the
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16 Opinion of the Court 22-12988
vehicle.” Lindsey, 482 F.3d at 1293 (quoting United States v. Tamari,
454 F.3d 1259, 1264 (11th Cir. 2006)). For example, in United States
v. Lanzon, 639 F.3d 1293 (11th Cir. 2011), we held that the district
court did not err in denying Lanzon’s motion to suppress because
officers had probable cause to search Lanzon’s truck pursuant to
the automobile exception. Id. at 1300. In that case, Lanzon partic-
ipated in instant message conversations with an undercover agent
posing as “Tom.” Id. Lanzon described to “Tom” his intent to
have sex with a minor, and he agreed to meet “Tom” and the mi-
nor at a specific time and place and to bring colored condoms with
him. Id. After driving his truck to the designated meeting place at
the agreed-upon time, Lanzon approached the officers who were
posing as “Tom” and the minor and said, “Tom, Tom.” Id. Lanzon
was then arrested, and a search of his person yielded no condoms.
Id. The officers sought Lanzon’s consent to search his truck, but
he refused. Id. at 1297. The officers then searched the truck any-
way—using Lanzon’s keys to open it—and found the colored con-
doms, along with flavored lubricant and a receipt for the purchase
of those items. Id. During his criminal proceedings, Lanzon filed
to suppress the evidence seized from his truck, which the district
court denied. Id. at 1299. On appeal, we held that, under the total-
ity of the circumstances, there was a fair probability that evidence
of a crime would be found in Lanzon’s vehicle. Id. at 1300.
The facts and circumstances known to law enforcement
here are similar to those in Lanzon. As in Lanzon, law enforcement
here, via a confidential informant, engaged in conversations with
Edgecombe that led to an agreement to meet at a specific time and
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22-12988 Opinion of the Court 17
place for an illicit act. The only significant difference here is the
involvement of a third party, Morley. But Morley arrived at the
designated meeting place at the agreed upon time, minutes after
Edgecombe had texted him to come, and after Edgecombe told
Fred that the cocaine was on its way. When Morley arrived, it was
clear that Edgecombe recognized him. Indeed, Edgecombe explic-
itly directed Fred to retrieve the cocaine from Morley’s car. There
was more than a reasonable probability that Fred would find con-
traband in the exact place that Edgecombe told him to look.
Morley’s argument against probable cause relies heavily on
one unpublished case, United States v. Smith, 596 F. App’x 804 (11th
Cir. 2015), in which this Court affirmed a district court’s finding
that probable cause existed. Id. at 807. In Smith, this Court held
that a police officer’s credible belief that “he smelled marijuana
coming from the car” of the defendant, whom he had just arrested
for marijuana possession, sufficed to show probable cause to con-
duct a warrantless search of the vehicle. Id. Morley’s argument
largely consists of a recitation of the facts in Smith in an effort to
distinguish it from the facts here. But there are multiple problems
with Morley’s approach. For starters, Morley fails to explain how
an unpublished case in which this Court found that law enforce-
ment acted reasonably establishes that law enforcement acted un-
reasonably here. Additionally, unlike the officer in Smith, Fred did
not have to logically deduce that there might be contraband in the
car based on smell or any other subjective factor. Fred searched
Morley’s car after Edgecombe first told Fred that the cocaine was
on its way and then specifically directed him to “[g]o get” the
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18 Opinion of the Court 22-12988
cocaine from Morley’s passenger seat. Thus, the probability that
Fred would find contraband in Morley’s car was no less than it was
in Smith.
Morley also misconstrues both the standard of review and
the legal test for probable cause. Regarding the standard of review,
he argues that it “is not improbable that no reasonable fact finder
could accept” an alternative explanation. Our review, however,
does not ask whether there is some possible alternative explanation
that a reasonable factfinder could have accepted. Rather, we re-
view the district court’s findings of fact only for clear error, and we
must give due weight to the inferences that the district court and
law enforcement officers draw from those facts. Ornelas, 517 U.S.
at 699. And when considering a ruling on a motion to suppress, we
must construe all facts in the light most favorable to the party pre-
vailing in the district court—here, the government. See Behety, 32
F.3d at 510.
As to the proper legal test, Morley argues that he was merely
used by Edgecombe as a pawn to unwittingly facilitate the Septem-
ber 28 deal. This conclusion, he contends, is supported by the fact
that Edgecombe unilaterally involved an innocent decoy for the
prior August 6 drug deal. But Morley’s knowledge, or lack thereof,
is irrelevant to the probable cause inquiry. Instead, it is “the facts
and circumstances within [law enforcement’s] knowledge” that
matter. Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir. 1998) (quot-
ing Williamson v. Mills, 65 F.3d 155, 158 (11th Cir. 1995)). Even if
Morley were “unwittingly duped” into bringing the cocaine to the
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22-12988 Opinion of the Court 19
deal, his supposed lack of knowledge has no bearing on law en-
forcement’s knowledge as to the probability that Morley’s car con-
tained cocaine.
Under the totality of the circumstances, the facts and cir-
cumstances that were known to law enforcement at the relevant
time supported a fair probability that cocaine would be found in
Morley’s vehicle. Edgecombe had previously sold Fred half a kilo-
gram of cocaine, and Fred and Edgecombe had no other relation-
ship besides that of customer and drug dealer. Turning to the night
of September 28, Fred and Edgecombe had negotiated an $84,000
drug deal, and Edgecombe made it clear to Fred that he was not
working alone. Edgecombe consistently asked Fred to go straight
to “the guy who was holding the dope.” And on the night of the
deal, Edgecombe asked Fred to drive with him to a different loca-
tion to get the cocaine from another person. After Fred refused,
Edgecombe told Fred that his associate was bringing it to them at
the Home Depot. Shortly afterward, Morley arrived, and parked
his vehicle close to Edgecombe and Fred’s cars. Edgecombe then
directed Fred to retrieve the drugs from the passenger seat of Mor-
ley’s car. This was more than enough to establish probable cause
under the automobile exception.
Because both elements of the automobile exception were
satisfied, law enforcement was authorized to conduct a warrantless
search of Morley’s car. Watts, 329 F.3d at 1286. We therefore af-
firm the district court’s denial of Morley’s motion to suppress.
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20 Opinion of the Court 22-12988
B. Sufficiency of the Evidence
Morley next challenges the sufficiency of the evidence sup-
porting his convictions for conspiracy to possess with intent to dis-
tribute cocaine in violation of 21 U.S.C. § 846 and possession of co-
caine with intent to distribute in violation of 21 U.S.C. § 841(a)(1).
Morley argues that the evidence here was solely circumstantial and
that it was insufficient for a reasonable jury to find him guilty be-
yond a reasonable doubt. Specifically, Morley argues that the pros-
ecution failed to prove that he was a willing participant in the con-
spiracy and that he knew that the briefcase contained cocaine.
Both of the offenses for which Morley was convicted have a
guilty knowledge element. The conspiracy charge under § 846 re-
quired the government to prove: (1) the existence of an illegal
agreement between two or more people to distribute cocaine; (2)
that Morley knew of the agreement and its goal; and (3) that Mor-
ley knowingly joined or participated in the agreement. See United
States v. Brown, 587 F.3d 1082, 1089 (11th Cir. 2009). And the sub-
stantive possession charge under § 841(a)(1) required the govern-
ment to prove that Morley knowingly possessed cocaine and in-
tended to distribute it. United States v. Mercer, 541 F.3d 1070, 1076
(11th Cir. 2008). Because guilty knowledge can rarely be estab-
lished directly, however, “a jury may infer knowledge and criminal
intent from circumstantial evidence alone.” United States v. Duenas,
891 F.3d 1330, 1334 (11th Cir. 2018).
Morley argues that the circumstantial evidence here is not
enough to support an inference of knowledge. He contends that
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22-12988 Opinion of the Court 21
this is a case of “guilt by association,” and that close association
with a co-conspirator or mere presence at the scene of the crime is
insufficient evidence to prove knowing participation in a conspir-
acy. Morley is correct that “[n]either association with a co-con-
spirator nor presence at the scene of a crime, standing alone, will
support a finding of specific knowledge.” Id. (citing United States v.
Louis, 861 F.3d 1330, 1333 (11th Cir. 2017)). But “presence none-
theless is a probative factor which the jury may consider in deter-
mining whether a defendant was a knowing and intentional partic-
ipant in a criminal scheme.” United States v. Miranda, 425 F.3d 953,
959 (11th Cir. 2005) (quoting United States v. McDowell, 250 F.3d
1354, 1365 (11th Cir. 2001)).
Relying mainly on our decision in United States v. Sullivan,
763 F.2d 1215 (11th Cir. 1985), Morley argues that his association
with Edgecombe along with his presence at the scene is insufficient
to support his convictions. In Sullivan, six codefendants were con-
victed of conspiring to import marijuana from Columbia and dis-
tribute it in the United States. Id. at 1216. The plan was to fly the
marijuana to Florida, and then at the airport landing strip, to of-
fload that marijuana into vans. Id. at 1216–17. Those vans would
then deliver the marijuana to other drivers who would be waiting
at a nearby hotel and would keep distributing the marijuana. Id.
All six codefendants appealed the sufficiency of the evidence sup-
porting their conspiracy convictions, but this Court found that only
one codefendant, Martos, raised a legitimate challenge. Id. at 1218.
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22 Opinion of the Court 22-12988
This Court summarized the evidence related to Martos as
follows. Drug Enforcement Administration agents saw Martos in
a hotel parking lot near a red van. Id. at 1219. A codefendant, Mar-
tinez, arrived in a blue van and walked over to Martos. Id. Martos
and Martinez then walked over to two other codefendants, and all
four walked around the parking lot for about five minutes. Id.
Martos and Martinez went to the blue van and one of them, though
it was never established who, removed a small bag from the van.
Id. The two then went into the hotel lounge. Id. All four of them
were later arrested, including Martos. Id. When Martos was ar-
rested, he was with Martinez who was carrying the small handbag,
which was found to contain a pistol. Id. There was no marijuana
found at the scene of arrest because the plan was for other conspira-
tors to offload the marijuana from the planes and transport it to the
hotel to meet separate drivers who would distribute it to various
other points. Id. at 1217. Therefore, though the police knew that
some alleged conspirators would be drivers in the hotel parking lot
awaiting other conspirators delivering marijuana from the airport,
there was no evidence as to who the drivers at the hotel would be.
Id.
We reversed Martos’s conviction because there was no evi-
dence that Martos knew of the existence of the conspiracy or that
he knew that the van was intended to transport marijuana. Id. His
conviction, rather, was seemingly based only “on his presence at
the scene in the [hotel] parking lot.” Id. He was never “observed
doing anything from which the jury could draw an inference that
he was a member of the conspiracy.” Id.
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22-12988 Opinion of the Court 23
Morley contends that this case is similar to Martos’s in Sulli-
van because there was no evidence that Morley knew Edgecombe
was planning to sell cocaine on August 6 or September 28 or that
Morley knew Edgecombe’s briefcase contained cocaine that
Edgecombe would instruct Fred to retrieve from Morley’s car. In-
stead, Morley argues, he merely believed that he was meeting his
friend, Edgecombe, after they scheduled a meeting at Home Depot
for Morley to return the case left in his car. Morley points out that
neither his DNA nor latent fingerprints were found on the cocaine
or briefcase, so there was insufficient proof that he knew that he
was transporting cocaine.
The circumstantial evidence here, however, is far greater
than it was in Sullivan and was more than sufficient for the jury to
infer Morley’s knowledge. For starters, no marijuana was recov-
ered at the scene of arrest in Sullivan, so it was much more attenu-
ated to impute, to Martos, knowledge of a conspiracy to distribute
drugs that Martos never physically possessed. In this case, it is un-
disputed that Morley was in physical possession of the three kilo-
grams of cocaine and that he transported the cocaine to the scene
of the drug deal at the time it was supposed to occur. The only
issue is whether a reasonable jury could have inferred that Morley
knowingly agreed to do so despite his contention that he was an
unsuspecting pawn. While knowledge requirements may vary
widely based on the individual facts of each case, a jury can infer
knowledge using certain guideposts, such as whether “a defendant
was instrumental to a plan’s success, had ample opportunities to
discover the critical fact, and was in frequent contact with someone
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24 Opinion of the Court 22-12988
who knew that fact.” United States v. Colston, 4 F.4th 1179, 1190
(11th Cir. 2021). Viewed in the light most favorable to the verdict,
a reasonable jury could have found that Morley knew of the plan
to deliver cocaine to a drug deal.
Morley played an instrumental role in the plan’s success.
Edgecombe relied on Morley to deliver $84,000 worth of cocaine
to a drug deal that Edgecombe had been discussing with Fred for
over a month. And a prudent drug dealer is not likely to entrust
the delivery of costly amounts of drugs to unwitting participants.
In fact, we have repeatedly held that because “‘a prudent smuggler
is not likely to suffer the presence of unaffiliated bystanders,’ when
the orchestrator of a conspiracy vests substantial trust in an associ-
ate to contribute to the scheme, a jury may infer the associate’s
knowing participation.” Duenas, 891 F.3d at 1334 (quoting United
States v. Cruz-Valdez, 773 F.2d 1541, 1547 (11th Cir. 1985) (en banc)).
The deal’s success depended on Morley delivering the cocaine. He
did so, arriving at the designated meeting site, at the designated
meeting time, minutes after Edgecombe directed him to show up.
Morley’s communications with Edgecombe further support
the inference of knowledge. On the day of the drug deal, Morley
was in consistent contact with Edgecombe, who had brokered the
cocaine deal with Fred. Morley’s phone records showed that he
and Edgecombe called each other fifteen times, including multiple
phone calls after Edgecombe had sent Morley the Home Depot ad-
dress. The communications leading up to the September 28 deal
suggested Morley’s knowledge, too. On September 22, Fred and
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22-12988 Opinion of the Court 25
Edgecombe had a conversation at 10:01 a.m. about a deal for six
kilograms of cocaine. During that call, Edgecombe told Fred that
“it still isn’t really in place yet.” Fred explained that he wanted to
know when it would be ready because he had “business” in Or-
lando. After that call, Edgecombe and Morley spoke twice on the
phone, once at 10:06 a.m. and again at 10:13 a.m. A minute after
Edgecombe’s second call with Morley, Edgecombe called Fred
again and told him he would send him “straight” and “directly” to
the person with the cocaine.
On the day of the August 6 deal, Edgecombe shared with
Morley the address of the Bass Pro Shops. In addition, a few days
before the August 6 drug deal, Edgecombe sent Morley two cryptic
text messages: “i want you ride with me to deal with something
also make yourself available,” and “whenever i call you i want ride
with me.” In Duenas, we found similar messages to be a relevant
indicator of the defendant’s knowledge. 891 F.3d at 1335. Specifi-
cally, the defendant in Duenas texted his girlfriend two days before
the transaction “that he was ‘going to do a special work,’ which he
suggested would be lucrative for him.” Id. His girlfriend “re-
sponded, ‘Good luck. God protect you and guide you,’” which this
Court found to be an indicator of the defendant’s “knowing as-
sumption of a palpable risk.” Id. The August 6 messages here are
similar to those in Duenas. Edgecombe urging Morley to make
himself available to ride with Edgecombe to deal with something
whenever Edgecombe called, a few days before the first drug deal,
could support an inference of Morley’s knowledge of the circum-
stances. When paired with the communications leading up to, and
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26 Opinion of the Court 22-12988
on the date of, the September 28 drug deal, the frequency and the
timing of the calls suggested Morley was a knowing participant.
Despite Morley’s arguments to the contrary, the circum-
stantial evidence here went far beyond Morley’s mere presence at
the scene or his close association with Edgecombe. Morley showed
up at the designated meeting site, at the designated meeting time,
minutes after Edgecombe directed him to come. He was entrusted
with delivering the cocaine, so he was instrumental to the deal. His
communications with Edgecombe, a knowing participant, were
frequent and suspiciously timed. In totality, a jury could reasona-
bly infer Morley’s knowing involvement in the cocaine conspiracy
on these facts. The trial evidence was thus sufficient to support his
convictions, and we affirm as to this issue.
C. Deliberate Ignorance Instruction
Morley also challenges the district court’s decision to pro-
vide a jury instruction on deliberate ignorance. The district court
instructed the jury on both actual knowledge and deliberate igno-
rance because the evidence “equally could be consistent with ac-
tual knowledge or deliberate ignorance.” The district court
pointed to Morley’s actions, such as his walking away from the car,
and the way the drugs were packaged.
A deliberate ignorance instruction is appropriate when the
facts “support the inference that the defendant was aware of a high
probability of the existence of the fact in question and purposely
contrived to avoid learning all of the facts in order to have a defense
in the event of a subsequent prosecution.” United States v. Rivera,
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22-12988 Opinion of the Court 27
944 F.2d 1563, 1571 (11th Cir. 1991) (quoting United States v. Al-
varado, 838 F.2d 311, 314 (9th Cir. 1987)). We have cautioned the
district courts against instructing juries on deliberate ignorance
when the evidence only points to either actual knowledge or no
knowledge on the part of the defendant. Stone, 9 F.3d at 937 (citing
Rivera, 944 F.2d at 1570–71). But it is not error “when the evidence
could support both actual knowledge or deliberate ignorance and
the jury was instructed on both.” United States v. Maitre, 898 F.3d
1151, 1157 (11th Cir. 2018).
Morley argues that the evidence only supported an actual-
knowledge theory and points to our decision in United States v. Pe-
rez-Tosta, 36 F.3d 1552 (11th Cir. 1994) for support. There, the de-
fendant had driven a “cocaine-laden” truck to a house and “was
present while seventy kilograms of cocaine were taken off the truck
and placed in the bedroom of the house.” Id. at 1565. Because the
only inference a jury could draw from this evidence was that the
defendant’s presence during such a large movement of cocaine
meant that he “had to have been aware of it,” we held that the dis-
trict court erroneously gave a deliberate ignorance instruction. Id.
But the facts here are different from Perez-Tosta. Unlike the
defendant in Perez-Tosta, Morley attempted to distance himself
from the deal as it took place. Morley received a text message from
Edgecombe with the address of the Home Depot and, within
minutes, left his house and drove there with a briefcase containing
three kilograms of cocaine on his passenger seat. When Morley
arrived, however, he did not attempt to find Edgecombe. Instead,
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28 Opinion of the Court 22-12988
he quickly exited his vehicle and walked across the street to a
Wendy’s restaurant. After realizing that the Wendy’s was closed,
Morley paced around outside and eventually made his way across
the street to help a family with car troubles. Consequently, Morley
was not present when Fred retrieved the three kilograms of cocaine
from Morley’s car, or when Fred gave Edgecombe the $84,000 for
that cocaine. These facts supported the alternative inference that
Morley was aware of a high probability that he had delivered co-
caine to a drug deal and had been trying to avoid learning all the
facts in order to have a defense in a subsequent prosecution. Mor-
ley’s actions therefore warranted the deliberate ignorance instruc-
tion.
In any event, the district court instructed the jury that it
could convict if Morley had actual knowledge or deliberate igno-
rance. If, as Morley contends, there was insufficient evidence that
he was deliberately ignorant of the contents of the briefcase, then
our precedent is clear that the jury must have convicted on the al-
ternative theory—actual knowledge. See Colston, 4 F.4th at 1192
(citing Stone, 9 F.3d at 938). Thus, even if the district court erred in
giving the deliberate ignorance instruction, it was harmless. See id.
In any event, Morley’s challenge to the jury instruction fails.
D. Safety Valve Reduction
Finally, Morley argues that the district court erred in its de-
termination that he was ineligible for a safety valve sentence reduc-
tion under the First Step Act. See 18 U.S.C. § 3553(f). The district
court denied Morley a safety valve reduction on two grounds: (1)
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22-12988 Opinion of the Court 29
Morley did not satisfy § 3553(f)(1) because he had a prior 3-point
offense and (2) Morley did not satisfy § 3553(f)(5) because his safety
valve statement was insufficiently truthful and complete.1 In light
of the Supreme Court’s recent decision in Pulsifer v. United States,
144 S. Ct. 718 (2024), the district court’s first basis for denying safety
valve relief was correct.
At the time of sentencing, there were competing interpreta-
tions as to whether § 3553(f)(1) was conjunctive or disjunctive. Af-
ter noting that the issue was “still not settled by the Eleventh Cir-
cuit,” the district court landed on the disjunctive side of the debate
and based its first ground for denying safety valve relief on that
finding. Shortly after Morley was sentenced, this Court released its
en banc decision in United States v. Garcon, 54 F.4th 1274 (11th Cir.
2022) (en banc), abrogated by Pulsifer, 144 S. Ct. 718. Vacating a prior
panel decision that reached the opposite conclusion, our en banc
Court determined that § 3553(f)(1) was “conjunctive” such that de-
fendants were only disqualified from safety valve relief due to prior
convictions if they had all of the criminal history features under
subsection (f)(1). Id. at 1276.
On appeal, Morley argued that Garcon invalidated the dis-
trict court’s first basis for denying safety valve relief and, as to the
second basis, that the district court clearly erred in finding that he
failed to satisfy § 3553(f)(5). The government conceded that, after
1 The relevant statutory provisions, along with the conjunctive versus disjunc-
tive interpretative divide, are detailed in the Factual & Procedural Back-
ground.
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30 Opinion of the Court 22-12988
Garcon, the district court’s first basis for denying safety valve relief
would have been incorrect. However, the government argued that
we should affirm on the district court’s alternative rationale that
Morley’s safety-valve statement was insufficient under § 3553(f)(5).
Therefore, the only issue that we would have needed to consider
is whether the district court erred in its § 3553(f)(5) determination.
We only needed to reach that argument, however, if Morley was
otherwise eligible for the safety valve reduction. But the Supreme
Court’s recent decision in Pulsifer expressly abrogated our decision
in Garcon and held that a defendant who has any of the three crim-
inal-history components under § 3553(f)(1) is disqualified from
safety valve sentencing relief. 144 S. Ct. at 737.
It is undisputed in this appeal that Morley fails to satisfy §
3553(f)(1)(B) because he has a prior three-point offense—conspir-
acy to import 100 kilograms or more of marijuana. Therefore,
Morley is ineligible for the safety valve reduction in light of Pulsifer.
We thus affirm the district court’s denial of Morley’s request for a
reduced sentence.
IV. CONCLUSION
For these reasons, we affirm Morley’s convictions and sen-
tence.
AFFIRMED.
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