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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-12132
Non-Argument Calendar
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D.C. Docket No. 8:16-cr-00182-RAL-TGW-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL JOSEPH ARMANO,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 30, 2018)
Before JILL PRYOR, HULL and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Pursuant to a plea agreement, Michael Armano pled guilty to one count of
enticing a minor to engage in a sexual act and one count of possessing child
pornography. The district court accepted Armano’s plea and sentenced him to 360
months of imprisonment on the enticement count and 120 months on the
possession count, to run concurrently, followed by a lifetime term of supervised
release. On appeal, Armano argues that his conviction and sentence should be
overturned for two reasons. First, he argues the government breached the plea
agreement by failing to file a motion to reduce Armano’s sentence based on the
substantial assistance he provided to the government. Second, he argues the plea
agreement is invalid because Armano was unaware that the agreement’s factual
proffer could be used to enhance his sentence. After careful review, we affirm.
I. BACKGROUND
A. Written Plea Agreement
A federal grand jury charged Armano with one count of enticement of a
minor to engage in a sexual act, in violation of 18 U.S.C. § 2422(b) (“Count 1”);
one count of enticement of a minor to engage in sexually explicit conduct for the
purpose of producing a visual depiction, in violation of 18 U.S.C. § 2251(a), (e)
(“Count 2”); and one count of possession of child pornography, in violation of 18
U.S.C. § 2252(a)(4)(B), (b)(2) (“Count 3”). Pursuant to a written plea agreement,
Armano pled guilty to Counts 1 and 3. Through the agreement, Armano admitted
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to certain facts, including that he had “targeted at least 60 children online.” Doc.
40 at 24.1
The agreement included a “Substantial Assistance” provision, which stated
that Armano would cooperate with the government in investigating and
prosecuting other individuals and testify in other proceedings. It provided that “[i]f
the cooperation [was] completed prior to sentencing,” the government would
“consider whether such cooperation qualifie[d] as ‘substantial assistance’ in
accordance with the policy of the United States Attorney for the Middle District of
Florida, warranting the filing of a motion . . . pursuant to [United States Sentencing
Guidelines] § 5K1.1[] or . . . 18 U.S.C. § 3553(e).”
Id. at 6-7.2 The agreement
made clear that “the determination as to whether ‘substantial assistance’ has been
provided” and whether the government would file a corresponding motion “rests
solely with [the government].”
Id. at 7.
The agreement also set forth the penalties applicable to Armano’s offenses.
It stated that Armano faced a statutory maximum penalty of life in prison on the
child enticement count and a statutory maximum penalty of 10 years in prison on
1
Citations to “Doc. #” refer to the district court docket in this case.
2
Section 5K1.1 of the Sentencing Guidelines allows the district court to sentence a
defendant who has provided substantial assistance below the minimum sentence required by the
guidelines. Title 18 Section 3553(e) of the United States Code states that “[u]pon motion of the
Government, the court shall have the authority to impose a sentence below a level established by
statute as a minimum sentence so as to reflect a defendant’s substantial assistance in the
investigation or prosecution of another person who has committed an offense.”
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the possession of child pornography count, and that the court could impose the
statutory maximum. The agreement provided that Armano “expressly waive[d]”
the right to appeal his sentence on any ground.
Id. at 21. Through the agreement,
Armano stated that he was pleading guilty freely and voluntarily and without
“threats, force, intimidation, or coercion of any kind.”
Id. at 22. He acknowledged
the charged offenses and the applicable penalties and agreed that he was satisfied
with the representation and advice he had received from his attorney.
B. Plea Hearing
At the plea hearing, Armano pled guilty to Counts 1 and 3. During the
hearing, the district court placed Armano under oath and confirmed that he had an
opportunity to meet with his attorney and discuss the case with her. Armano
testified that he had a bachelor’s degree, understood English, had never been
treated for a mental illness, and was able to think clearly. He stated that he
understood he was pleading guilty and confirmed that he had signed the written
plea agreement after reviewing “each and every provision” with his attorney. Doc.
70 at 8. He testified that he understood the agreement and did not have questions
about it.
The district court specifically discussed with Armano the Substantial
Assistance provision to ensure that Armano was “absolutely clear on what the
government is agreeing to do.”
Id. at 11. The district court explained that “[t]he
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government is not saying that if you cooperate with them . . . they will in fact . . .
file a motion for a downward departure.”
Id. Instead, the district court explained,
the government agreed only that it would “evaluate in good faith whether any
information or assistance you provide them qualifies as substantial assistance.”
Id.
at 12. Armano confirmed that he understood. The district court continued:
If you cooperate with the government and, when we come to
sentencing . . . the government declines to file [the substantial
assistance] motion, there’s only one very limited circumstance that
would allow me to intervene on your behalf and that is if you could
make a substantial showing to me that the reason they didn’t file the
motion was based on what we call an unconstitutional motive . . . .
It’s a very heavy burden and unless you can prove that to me . . . the
decision whether to file that motion rests with [the government].
Id. Armano again confirmed that he understood. The district court asked the
government if Armano had been cooperating, and the government responded that
he had.
The district court then sought to confirm that Armano knew he was waiving
his right to appeal his sentence on most grounds, including on the basis of an error
in calculating the sentencing guidelines range. The district court noted that “in
these sex-related cases . . . there are all kinds of upward adjustments under the
Guidelines.”
Id. at 15. The district court confirmed with Armano that he had
discussed those adjustments with his attorney and that he knew he was waiving his
right to appeal any determination that he qualified for such an adjustment. Armano
also confirmed that he and his attorney had discussed the guidelines and how they
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might affect his case. The district court told Armano that the court’s calculation of
his guidelines range “[would] control” even if it differ[ed] from any estimate his
attorney had provided him, and that he could not withdraw his guilty plea if his
attorney’s estimate turned out to be incorrect.
Id. at 22.
After Armano stated that he wished to plead guilty to Counts 1 and 3, the
district court confirmed that Armano had understood the proceeding, answered all
of the court’s questions completely and truthfully, and did not need to confer with
his attorney any further. The district court found that Armano had pleaded guilty
freely, voluntarily, and intelligently. The court accepted Armano’s plea and
adjudged him guilty.
C. Sentencing Hearing
Prior to sentencing, in the Presentence Investigation Report (“PSI”), the
probation officer recommended a guidelines range of life in prison. That
recommendation was based, in part, on the fact that Armano’s plea agreement
included stipulations to targeting at least 60 victims, which resulted in the creation
of numerous “pseudo counts.” See U.S.S.G. § 1B1.2(c) (“A plea agreement . . .
containing a stipulation that specifically establishes the commission of additional
offense(s) shall be treated as if the defendant had been convicted of additional
count(s) charging those offense(s).”). At sentencing, Armano objected to the
proposed guidelines calculations on several grounds, including the creation of
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pseudo counts, arguing that the plea agreement’s reference to 60 victims should not
serve as the basis for additional counts. The district court overruled those
objections and adopted the PSI.
The government recommended a sentence of life in prison. The prosecutor
argued that Armano was “obsessed with sexually exploiting kids” and that he
“[could not] stop himself even if he may want to.” Doc. 67 at 151. The
government argued that Armano was likely to be a recidivist because he “could not
control himself . . . [a] fact that’s impossible to deny.”
Id. at 179. The district
court told the prosecutor to “[q]uit the histrionics” and “take it easy.”
Id. at 180.
After hearing argument from Armano, the district court varied downward by one
offense level, sentencing Armano to 360 months of imprisonment on Count 1 and
120 months of imprisonment on Count 3, to be served concurrently, followed by a
lifetime term of supervised release. This is Armano’s appeal.
II. STANDARDS OF REVIEW
This Court ordinarily reviews de novo whether the government has breached
a plea agreement and whether a plea was made voluntarily. United States v. De La
Garza,
516 F.3d 1266, 1269 (11th Cir. 2008) (breach of a plea agreement); United
States v. Bushert,
997 F.2d 1343, 1352 (11th Cir. 1993) (voluntariness of a guilty
plea). If the defendant fails to raise either of these issues before the district court,
however, we review for plain error. De La
Garza, 516 F.3d at 1269; United States
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v. Moriarty,
429 F.3d 1012, 1018 (11th Cir. 2005). Under plain error review, there
must be (1) an error, (2) that is plain, (3) that affects the defendant’s substantial
rights, and (4) that seriously affects the fairness, integrity, or public reputation of
judicial proceedings. United States v. Olano,
507 U.S. 725, 732 (1993).
III. DISCUSSION
A. The Government’s Alleged Breach of the Plea Agreement
Armano argues that the government breached its agreement by failing to file
a motion for substantial assistance under U.S.S.G. § 5K1.1. Because Armano
failed to make this argument in the district court, we review it for plain error.
When a guilty plea rests “in any significant degree on a promise or agreement of
the prosecutor, so that it can be said to be part of the inducement or consideration,
such promise must be fulfilled.” Santobello v. New York,
404 U.S. 257, 262
(1971). To determine whether the government has breached a plea agreement, “we
must first determine the scope of the government’s promises.” United States v.
Copeland,
381 F.3d 1101, 1105 (11th Cir. 2004).
The government promised Armano that it would “consider” whether his
assistance qualified as substantial assistance under its policies and whether it
would introduce a motion to that effect. Doc. 40 at 6. The plea agreement
specifically stated that the decision as to whether the government would introduce
a substantial assistance motion to reduce Armano’s sentence “rest[ed] solely with
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the [government].”
Id. at 7. And as the district court explained to Armano at the
plea hearing, the government agreed only to “evaluate in good faith whether any
information or assistance . . . qualifie[d] as substantial assistance.” Doc. 70 at 12.
Even assuming that Armano fully cooperated with the government, therefore, the
government never agreed to introduce a substantial assistance motion and did not
breach the plea agreement by failing to do so.
Armano argues that the government breached the plea agreement by failing
to evaluate “in good faith” whether he had provided substantial assistance. He
points to the prosecutor’s statements during sentencing that Armano was
“obsessed” with child pornography and that he could not stop himself from
committing another offense, arguing that these comments show that the
government never intended to offer the substantial assistance motion. We disagree
with Armano that these statements—which were made without reference to
Armano’s assistance—show that the government failed to evaluate his assistance
in good faith. And, in any event, because Armano failed to raise this argument
during sentencing, the district court did not plainly err by failing to consider sua
sponte whether the plea agreement had been breached on that basis. See United
States v. Forney,
9 F.3d 1492, 1500 (11th Cir. 1993) (explaining the defendant’s
“attempt to allege bad faith by the government for not making a [§] 5K1.1 motion
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[was] unavailing because he did not raise this objection with the district court at
the sentencing proceeding”).
Armano further argues that his conviction and sentence should be overturned
because the government was motivated by an unconstitutional factor in declining
to make a substantial assistance motion. Although, in general, introducing a
substantial assistance motion is a matter of prosecutorial discretion, that discretion
“is subject to constitutional limitations that district courts can enforce.” Wade v.
United States,
504 U.S. 181, 185 (1992). A prosecutor may not, for example,
decide against introducing a substantial assistance motion because of factors such
as “the defendant’s race or religion.”
Id. at 186. But as the Supreme Court has
explained, a defendant arguing that a prosecutor had an unconstitutional motivation
must make some showing beyond mere “generalized allegations of improper
motive.”
Id.
Armano makes only generalized allegations here. He argues that the
prosecutor’s comments about his obsession with child pornography were improper,
but he does not explain how those comments relate to an unconstitutional
motivation, like his race or his religion. Further, the prosecutor’s statements
suggesting that Armano would commit another offense related to child
pornography pertained to the factors the district court must consider during
sentencing, including the need for the sentence to deter criminal conduct and
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protect the public from further crimes. See 18 U.S.C. § 3553(a)(1)-(2). We thus
reject Armano’s argument that the prosecutor’s comments showed that the
government was unconstitutionally motivated in deciding not to introduce a
substantial assistance motion. Because Armano has identified no error with
respect to the government’s decision against introducing a substantial assistance
motion, we need not discuss the remaining prongs of the plain error test. 3
B. The Knowing and Voluntary Nature of Armano’s Guilty Plea
Armano argues that his conviction was not knowing or voluntary because he
was unaware that the facts he admitted in the plea agreement could be used to
enhance his sentence. Because Armano failed to make this argument during
sentencing, we review it for plain error. “A guilty plea involves the waiver of a
number of a defendant’s constitutional rights, and must therefore be made
knowingly and voluntarily to satisfy the requirements of due process.”
Moriarty,
429 F.3d at 1019. This Court has recognized three “core principles” as necessary
to a knowing and voluntary plea. United States v. Mosley,
173 F.3d 1318, 1322
(11th Cir. 1999) (internal quotation marks omitted). The defendant must (1) enter
his guilty plea free from coercion, (2) understand the nature of the charges, and (3)
3
Armano argues that we should review his argument de novo, rather than for plain error,
but because he identifies no error, the standard of review makes no difference to the outcome of
his appeal.
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understand the consequences of his plea.
Id. The district court addressed each of
these core concerns in accepting Armano’s plea.
First, the district court ensured that Armano’s plea was not coerced.
Armano testified that he had not been induced by any promises or assurances other
than those contained in the plea agreement, and he stated that no one had made any
claims about the sentence the district court would impose on him. He also
confirmed that he had not been threatened or coerced into pleading guilty. Armano
agreed that he was pleading guilty only “because it’s what [he] want[ed] to do and
for no other reason.” Doc. 70 at 31.
Second, the district court ensured that Armano understood the nature of the
charges against him. We have held that “there is no one mechanical way” that a
district judge must advise a defendant of the charges to which he is pleading guilty.
Mosley, 173 F.3d at 1322 (internal quotation marks omitted). Instead, we assess
each plea colloquy “individually based on various factors, such as the simplicity or
complexity of the charges and the defendant’s sophistication and intelligence.”
Id.
at 1322-23 (internal quotation marks omitted). Here, the district court confirmed
that Armano could read, write, and speak English; that he had a college education;
that he understood the proceeding; and that he was not under the influence of drugs
or any other substance. The district court also listed the elements of each offense
the government would have to prove beyond a reasonable doubt if Armano were to
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proceed to trial. Armano testified that he had reviewed the indictment and the plea
agreement, and that he understood the specific factual circumstances underlying
the offenses.
Third, the district court ensured that Armano understood the consequences
of his plea. “To ensure compliance with this third core concern, [Federal Rule of
Criminal Procedure] 11(b)(1) provides a list of rights and other relevant matters
about which the court is required to inform the defendant prior to accepting a
guilty plea.”
Moriarty, 429 F.3d at 1019. Relevant here, the district court must
inform the defendant of any maximum possible penalty and it must ensure the
defendant understands that the district court has an obligation to calculate and
consider the applicable guidelines range, to consider any possible departures under
the guidelines, and to consider the sentencing factors in 18 U.S.C. § 3553(a). Fed.
R. Crim. P. 11(b)(1)(M). Here, the district court informed Armano of the statutory
maximum penalties applicable to Counts 1 and 3. The district court also ensured
that Armano had discussed possible sentencing enhancements with his attorney,
noting that “in these sex-related cases . . . there are all kinds of upward adjustments
under the Guidelines.” Doc. 70 at 15. The district court also told Armano that its
calculation of the guidelines range would “[would] control” even if it were
different than the estimate his attorney had provided him.
Id. at 22.
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According to Armano, the district court should have explained to him that
the statement contained in the plea agreement that he had “targeted at least 60
children online” could be used to enhance his sentence. Doc. 40 at 24. But Rule
11 “does not require the court to specify which guidelines will be important or
which grounds for departure might prove to be significant.” United States v.
Bozza,
132 F.3d 659, 661-62 (11th Cir. 1998) (internal quotation marks omitted)
(discussing Rule 11(c)(1)). Instead, where the district court confirms “at the plea
proceeding that [the defendant] knew about the Sentencing Guidelines and that he
had discussed the effect of the Sentencing Guidelines on his sentence with his
attorney,” the plea is knowing and voluntary.
Mosley, 173 F.3d at 1328. “With
respect to the Sentencing Guidelines, that is all we require the district judge to do.”
Id. We thus disagree with Armano that the district court should have rejected his
plea because it was unknowing and involuntary. Because Armano has identified
no error related to the district court’s acceptance of his guilty plea, we need not
address the rest of the plain error test.4
4
We decline to consider on direct appeal Armano’s argument that his attorney’s
performance was deficient. See United States v. Bender,
290 F.3d 1279, 1284 (11th Cir. 2002)
(“We will not generally consider claims of ineffective assistance of counsel raised on direct
appeal where the district court did not entertain the claim nor develop a factual record.”).
Because there is no factual record pertaining to whether Armano’s attorney was ineffective, that
claim would be better addressed in a 28 U.S.C. § 2255 motion. See United States v. Patterson,
595 F.3d 1324, 1328 (11th Cir. 2010) (“[T]he preferred means for deciding a claim of ineffective
assistance of counsel is through a 28 U.S.C. § 2255 motion even if the record contains some
indication of deficiencies in counsel’s performance.” (internal quotation marks omitted)).
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IV. CONCLUSION
For these reasons, we affirm Armano’s conviction and sentence.
AFFIRMED.
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