United States v. Gonzalez ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-10327 APRIL 15, 2009
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 07-20584-CR-UU
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE GONZALEZ,
STEVEN HARTSFIELD,
Defendants-Appellants.
________________________
No. 08-12010
Non-Argument Calendar
________________________
D. C. Docket No. 07-20584-CR-UU
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EARNEST PICKETT,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(April 15, 2009)
Before TJOFLAT, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
On July 26, 2007, a Southern District of Florida grand jury returned a six-
count indictment against Jose Gonzalez, Steven Hartsfield, Earnest Pickett, Juan
Alameda, and Gilbert Guerrero charging them as follows. Count 1 alleged that the
defendants conspired to possess with intent to distribute a mixture and substance
containing five kilograms or more of cocaine, in violation of 21 U.S.C. §
846(b)(1)(A). Count 2 charged the defendants with attempting to possess the
mixture and substance referred to in Count 1, in violation of 21 U.S.C. § 841(a)(1).
Count 3 alleged that the defendants conspired to commit a Hobbs Act robbery, in
violation of 18 U.S.C. § 1951(a). Count 4 alleged that they attempted to commit
the robbery referred to in Count 3, in violation of 18 U.S.C. § 1951(a). Count 5
charged the defendants with carrying a firearm in relation to the drug trafficking
crimes alleged in Counts 1 and 2, in violation of 18 U.S.C. § 924(c)(1)(A). Count
6 charged Gonzalez and Hartsfield with possession of a firearm by a convicted
2
felon, in violation of 18 U.S.C. § 922(g)(1).
These charges grew out of a sting operation set up by a Miami-Dade Police
Department Street Terror Offender Program, a task force of federal and state law
enforcement agencies. In March 2007, a confidential informant, Modesto Garcia,
informed two Miami-Dade detectives that (defendant) Alameda and a group of
confederates were interested in committing a robbery of a drug stash house. One
of the detectives, acting under cover, posed as a drug dealer, whose job was to
secure cocaine flown in from Colombia and to deliver it to his employers in
Miami. He told Alameda that he wanted to rob his employers because they owed
him money. Alameda agreed to assist him in carrying out the robbery.
By July 5, 2007, preparations for a robbery were in place. The undercover
detective told Alameda that a delivery of cocaine would be arriving from Colombia
within a week. On July 12, he called Alameda and informed him that the cocaine
had arrived and that it would be delivered to the stash house, a local warehouse, the
next day. On July 13, the defendants then gathered in Miami and met Garcia at a
Home Depot parking lot. Garcia had driven there in his Ford Expedition, which
was equipped with video surveillance camera. While under the task force’s
surveillance, Alameda placed an AK-47 assault rifle in Garcia’s Expedition, and
Gonzalez, armed with a handgun, Hartsfield, and Guerrero got into the Expedition
3
with Garcia. Alameda and Pickett went to Alameda’s car, and the two vehicles
drove to the warehouse. They were arrested on arrival.
All five defendants entered pleas of not guilty. On September 21, 2007,
Guerrero, and Alameda pled guilty to Counts 1 through 5 of the indictment.
Gonzalez, Hartsfield, and Pickett elected to stand trial. Guerrero, who was
cooperating with the Government, would testify against them. The trial began on
September 25, 2007. Five days later, on October 1, the jury returned their verdicts,
convicting Gonzalez on all counts,1 Hartsfield guilty on Counts 3 through 6, and
Pickett on Counts 3 and 4. Following the imposition of sentence, Gonzalez,
Hartsfield, and Pickett appealed. Pickett’s appeal having been filed separately has
been consolidated with Gonzalez and Hartsfield’s. All three challenge their
1
Although neither the government nor Gonzalez has noted the clerical errors in the
judgment the court entered against Gonzalez, we do so sua sponte and remand with instructions
that the district court correct the errors. United States v. Massey, 443 F.3d 814, 822 (11th Cir.
2006). We have done this where the statute cited in the judgment and commitment order was
incorrect. United States v. Anderton, 136 F.3d 747, 751 (11th Cir. 1998). The judgment aginst
Gonzalez does not list the correct statutory provisions he violated. The judgment as to Counts 1,
2, and 6 are correct, but is incorrect as to Counts 3, 4, and 5. In Count 3, Gonzalez was charged
with conspiracy to obstruct, delay, and affect commerce by means of robbery, in violation of 18
U.S.C. §§ 1951(a), (b)(1), and (b)(3). However, the judgment lists “21 U.S.C. § 1951(a)” as
violated. In Count 4, Gonzalez was charged with attempt to obstruct, delay, and affect
commerce by means of robbery, in violation of 18 U.S.C. §§ 1951(a), (b)(1), and (b)(3), but
similarly, the judgment lists “21 U.S.C. § 1951(a).” In Count 5, Gonzalez was charged with
carrying a firearm during and in relation to a crime of violence and a drug trafficking crime, in
violation of 18 U.S.C. §§ 924(c)(1)(A) and 2. The judgment, however, lists “18
U.S.C.(c)(1)(A)” as the violation. Accordingly, we affirm Gonzalez’s convictions, but vacate
the district court’s judgment and remand the case to allow the court to amend the judgment to
reflect the correct statutory provisions violated.
4
convictions; Hartsfield also challenges his sentences.2
I.
A.
We begin our consideration of these appeals by delineating the elements of
the offenses alleged in the several counts of the indictment and what the
government had to do to prove them. We first take up § 1951(a), the Hobbs Act,
then §§ 924(c)(1) and 922(g)(1).
“The Hobbs Act prohibits robbery or extortion, and attempts or conspiracies
to commit robbery or extortion, that in any way or degree obstruct, delay, or affect
commerce or the movement of any article or commodity in commerce.” United
States v. Diaz, 248 F.3d 1065, 1084 (11th Cir. 2001) (internal quotation marks and
punctuation omitted). Section 1951(a) of Title 18 provides that:
[w]hoever in any way or degree obstructs, delays, or affects
commerce or the movement of any article or commodity in
commerce, by robbery or extortion or attempts or conspires so
to do, or commits or threatens physical violence to any person
or property in furtherance of a plan or purpose to do anything in
violation of this section shall be fined under this title or
imprisoned not more than twenty years, or both.
2
The district court sentenced Hartsfield as follows: concurrent sentences of 240 months’
imprisonment on Counts 3 and 4, 180 months’ imprisonment on Count 6, 60 months of which
are consecutive to the Counts 3 and 4 sentences, and 60 months’ imprisonment on Count 5, to be
served consecutively to the sentences on Counts 3, 4, and 6, for a total term of imprisonment of
360 months.
5
18 U.S.C. § 1951(a).
To prove a Hobbs Act conspiracy (Count 3), the government had to prove
that: “(1) two or more persons agreed to commit a robbery encompassed within the
Hobbs Act; (2) the defendant knew of the conspiratorial goal; and (3) the defendant
voluntarily participated in helping to accomplish the goal.” United States v. To,
144 F.3d 737, 747-48 (11th Cir. 1998). “Although mere presence is inadequate to
establish guilt . . . it is material, highly probative, and not to be discounted.”
United States v. Gamboa, 166 F.3d 1327, 1332 (11th Cir. 1999) (internal quotation
marks and citation omitted).
“Because the Hobbs Act, by its own terms, encompasses the inchoate
offenses of attempt and conspiracy, the interstate nexus required to prove a Hobbs
Act conspiracy may be established upon evidence that had the conspiratorial
objective been accomplished, interstate commerce would have been affected.”
United States v. Orisnord, 483 F.3d 1169, 1177 (11th Cir.), cert. denied, 128 S.Ct.
673 (2007) (emphasis added). The type of evidence required for the government to
satisfy its burden of proof concerning the interstate commerce nexus under the
Hobbs Act differs depending on whether the defendant is charged with inchoate
offenses of conspiracy and attempt, on the one hand, or a substantive offense, on
the other. United States v. Le, 256 F.3d 1229, 1232 (11th Cir. 2001). Where a
6
defendant is charged with conspiracy (Count 3) or attempt (Count 4) to violate the
Hobbs Act, “the interstate nexus may be demonstrated by evidence of potential
impact on interstate commerce or by evidence of actual, de minimis impact.” Id.(citations omitted). In the case of a substantive Hobbs Act offense, the “impact on
commerce does not need to be substantial; all that is required is minimal impact.”
Id. Moreover, that the intended victims and narcotics were fictional in a sting
operation is irrelevant to establishing the interstate commerce jurisdictional
requirement for a conviction under the Hobbs Act. United States v. Taylor, 480
F.3d 1025, 1027 (11th Cir.), cert. denied, 128 S.Ct. 130 (2007).
To establish a violation of 18 U.S.C. § 924(c)(1) (Count 5), the government
had to demonstrate beyond a reasonable doubt that the defendant (1) knowingly
(2) possessed a firearm (3) during and in relation to a drug trafficking crime or a
crime of violence. United States v. Woodard, 531 F.3d 1352, 1362 (11th Cir.
2008); 18 U.S.C. § 924(c)(1)(A). A “crime of violence” means an offense that is a
felony and either (1) has as an element the use or attempted use of physical force
against a person or (2) by its nature involves a substantial risk that physical force
against a person may be used in the course of committing the offense. 18 U.S.C.
§924(c)(1)(D)(3). An attempted robbery constitutes a crime of violence under §
924(c)(1)(A). See United States v. Hooper, 270 Fed. Appx. 929, 930 (11th Cir.),
7
cert. denied, 129 S.Ct. 429 (2008) (unpublished) (finding evidence sufficient to
support a § 924(c) conviction when a defendant used a firearm during an attempted
robbery). Further, the government is not required to show to a “scientific
certainty” that a defendant was carrying a gun, nor is it required to introduce the
gun into evidence. United States v. Woodruff, 296 F.3d 1041, 1049 (11th Cir.
2002).
To convict a defendant of being a felon in possession of a firearm under 18
U.S.C. § 922(g)(1) (Count 6), the government had to prove beyond a reasonable
doubt that (1) the defendant was a convicted felon, (2) the defendant knowingly
possessed a firearm, and (3) the firearm was in or affected interstate commerce.
United States v. Deleveaux, 205 F.3d 1292, 1296-97 (11th Cir. 2000).
In this case, the government could prove, through direct or circumstantial
evidence, the first element under both §§ 922(g)(1) and 924(c) – knowing
possession of a firearm – either actual or constructive possession. United States v.
Greer, 440 F.3d 1267, 1271 (11th Cir. 2006). “Constructive possession exists
when the defendant exercises ownership, dominion, or control over the item or has
the power and intent to exercise dominion or control.” Id. Mere presence near
contraband or awareness of its location, is insufficient to establish possession.
United States v. Gardiner, 955 F.2d 1492, 1495 (11th Cir. 1992). We have found
8
sufficient evidence of constructive possession of a gun that was found in the glove
compartment of a car in which the defendant was a backseat passenger, as the jury
could “find that the firearm was being carried by [the defendant] in the vehicle.”
United States v. Farris, 77 F.3d 391, 395-96 (11th Cir. 1996).
B.
Pickett argues that the district court erred by denying his motion for
judgment of acquittal because the evidence was insufficient for a jury to conclude
that he conspired or attempted to commit a Hobbs Act robbery. Hartsfield argues,
independently, that there was insufficient evidence for a reasonable juror to find
that he conspired or attempted to commit a Hobbs Act robbery, possessed a firearm
or ammunition, or knowingly possessed a firearm in relation to a crime of
violence.3 Hartsfield asks us not to rely on Guerrero’s testimony in reviewing the
3
The Government argues that Hartsfield did not properly adopt the briefs of his
codefendants. In his appellate brief filed before either of his codefendants submitted their briefs,
Hartsfield expressly raises the issues set forth above, but wishes to adopt the brief Pickett filed in
his appeal and all “common issues” of the codefendants.
Federal Rule of Appellate Procedure 28 states, “In a case involving more than one
appellant or appellee, including consolidated cases, any number of appellants or appellees may
join in a brief, and any party may adopt by reference a part of another’s brief.” Fed. R. App. P.
28(i). According to our local rules, parties wishing to adopt any part of the brief of another party
“shall include a statement describing in detail which briefs and which portions of those briefs are
adopted.” 11th Cir. R. 28-1. Normally, defendants, in non-consolidated appeals, may not
automatically adopt and rely on briefs of another case unless they separately move for adoption
and the motion is granted. United States v. Bichsel, 156 F.3d 1148, 1150 n.1 (11th Cir. 1998).
However, a defendant, in a consolidated appeal, may adopt a codefendant’s argument by specific
reference in the initial appellate brief. United States v. Gray, 626 F.2d 494, 497 (5th Cir. 1980).
Sufficiency arguments are “too individualized to be generally adopted.” United States v.
Cooper, 203 F.3d 1279, 1285 n.4 (internal quotations marks and citation omitted).
9
sufficiency of the evidence because it is “incredible as a matter of law.” Gonzalez
argues that the evidence was insufficient for the jury to find beyond a reasonable
doubt that he was predisposed to commit the charged crimes and therefore reject
his entrapment defense.
A claim that the evidence was insufficient to convict is reviewed de novo.
United States v. Nolan, 223 F.3d 1311, 1314 (11th Cir. 2000). To determine
whether appellants’ convictions should stand, we view the evidence in the light
most favorable to the government and affirm, based on this evidence, “any rational
trier of fact could have found the essential elements of the crime [at issue] beyond
a reasonable doubt.” Id. (internal citation and quotation marks omitted). We will
not disturb the district court’s denial of appellants’ motions for a judgment of
acquittal unless there is no reasonable construction of the evidence under which the
jury could have found guilt beyond a reasonable doubt. United States v. Garcia,
405 F.3d 1260, 1269 (11th Cir. 2005).
Determinations of credibility of witnesses fall within the exclusive province
In this case, Hartsfield did not properly adopt the arguments of either Pickett or Gonzalez
because he did not designate the pages of any briefs that he wished to adopt or otherwise
describe in detail the portions that he wished to adopt. See 11th Cir. R. 28-1. Moreover, Pickett
only raises sufficiency of the evidence claims, which are “too individualized to be generally
adopted.” See Cooper, 203 F.3d at 1285. Nevertheless, the technical failure to adopt his
codefendants’ sufficiency of the evidence arguments is not critical because Hartsfield raises such
an issue on his own.
10
of the jury and may not be revisited unless the testimony is “incredible as a matter
of law.” United States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997). “For
testimony of a government witness to be incredible as a matter of law, it must be
unbelievable on its face.” Id. (internal quotation marks and citation omitted). The
testimony must consist of facts that the witness physically could not have possibly
observed or “events that could not have occurred under the laws of nature.” Id.The fact that a witness thought that the witness lied in the past or thought that the
testimony would benefit him does not make the testimony incredible. Id. Even the
uncorroborated testimony of a single accomplice may support a conviction, if the
testimony is not on its face incredible or otherwise insubstantial. United States v.
Sabin, 526 F.2d 857, 859 (5th Cir. 1976).
Hartsfield asks us to disregard Guerrero’s testimony as not credible. If we
do that, he submits, we must set aside his convictions for lack of sufficient
evidence. We cannot say that Guerrero’s testimony was “not incredible as a matter
of law” because, even though it contradicted testimony of another witness, the
testimony was not “unbelievable on its face.” See Calderon, 127 F.3d at 1325.
The jury was free to make its own credibility determinations based on the
competing evidence, see id., and apparently believe much of what Guerrero had to
say. With the foregoing principles in mind, we consider whether the government’s
11
cases against Pickett and Hartsfield were sufficient to withstand their motions for
judgment of acquittal.4
1.
As to the Hobbs Act conspiracy charge in Count 3, Guerrero testified that
Pickett and Hartsfield knew about the conspiracy, as they discussed the robbery in
the vehicle on the way to meeting Garcia. Further, Guerrero testified that Pickett
and Hartsfield agreed to go inside the house with firearms and grab the cocaine.
Additionally, the jury was entitled to infer from Pickett’s post-arrest statement to
Alameda asking, “What about the dope,” and Alameda’s response, “There was
never no dope,” that Pickett knew the goal of the conspiracy was to commit a
robbery for cocaine. The interstate nexus was sufficient because, as in Taylor, the
conspiratorial aim was to rob a stash house of a narcotics organization. See Taylor,
480 F.3d at 1027. Thus, there was sufficient evidence for the jury to find that
Pickett and Hartsfield knowingly agreed to participate in a narcotics robbery.
Regarding the attempted Hobbs Act robbery charged in Count 4, the
evidence shows that Pickett and Hartsfield acted with the kind of culpability
required to commit a robbery and that they engaged in substantial steps toward the
4
At this juncture, we acknowledge that Hartsfield seeks a new trial on the ground that
the district court’s cumulative errors denied him a fair trial. His cumulative-error argument is
frivolous and therefore requires no further comment.
12
commission of the robbery. Pickett and Hartsfield met Garcia at a prearranged
location and time and traveled to a warehouse where they were supposed to
retrieve a vehicle that they would use to hide the cocaine. Garcia was then
supposed to take them to the stash house. Additionally, law enforcement agents
seized brass knuckles in a compartment near Pickett’s seat and three black
stockings from Hartsfield’s pockets. Considering these facts, a reasonable juror
could find that Pickett and Hartsfield attempted to commit a narcotics robbery.
2.
Picket was not convicted on the § 924(c)(1) firearm charge of Count 5, but
Hartsfield was. The evidence against him was overwhelming. The police
recovered an assault rifle and handguns in Garcia’s vehicle, in which he was a
passenger. Guerrero testified that, while on the way to the robbery, Hartsfield
discussed using one of the handguns to steal the cocaine. He had constructive
possession of the handgun because he was not only physically near the gun, but he
also had the power and intent to use it. Given Guerrero’s testimony, the jury
apparently found that there was a nexus between Hartsfield’s constructive
possession of the handgun and the attempted drug robbery.
3.
Hartsfield (and Gonzalez) were charged in Count 6 with the § 922(g)(1)
13
offense. Hartsfield stipulated that (1) he was a convicted felon and (2) that the
firearm was in or affected interstate commerce; thus, the only element at issue was
whether he knowingly possessed a firearm. In light of our discussion in subpart 2
above, we must conclude that there was sufficient evidence for the jury to convict
Hartsfield on Count 6.
4.
Gonzalez sole attack on the sufficiency of the evidence is that the
government failed as a matter of law to establish his predisposition to engage in the
criminal activity alleged in the indictment. Put another way, the court should have
granted him judgment of acquittal on the basis of his entrapment defense. At trial,
he testified that he knew about the attempted robbery plan, but stated that he only
joined in the plan because Garcia threatened him.
We review a jury’s rejection of an entrapment defense de novo, viewing all
of the evidence and inferences in favor of the government. United States v.
Francis, 131 F.3d 1452, 1456 (11th Cir. 1997). Our review is limited to
determining whether the government presented sufficient evidence to the jury for it
reasonably to have concluded that the defendant was predisposed to take part in the
crime. Id. We cannot overturn the jury’s verdict if there is any reasonable
construction of the evidence that would allow the jury to have found the defendant
14
guilty beyond a reasonable doubt. Id. If, as here, the defendant testifies, the jury
may conclude that the opposite of the testimony is true and use the statement as
substantive evidence of his guilt. United States v. Brown, 53 F.3d 312, 314 (11th
Cir. 1995).
An affirmative defense of entrapment consists of two elements:
(1) government inducement of the crime; and (2) lack of predisposition on the part
of the defendant to commit the crime. United States v. Ryan, 289 F.3d 1339, 1343
(11th Cir. 2002). “[T]he defendant bears the initial burden of production as to
government inducement; once the defendant meets this burden, the burden shifts to
the government to prove beyond a reasonable doubt that the defendant was
predisposed to commit the crime.” Id. “Predisposition is a fact intensive inquiry
into the defendant’s readiness and willingness to engage in the crime absent any
contact with the government’s officers or agents.” Francis, 131 F.3d at 1456.
Predisposition may be demonstrated by the following: (1) the defendant’s
ready commission of the charged crime; and (2) evidence that the defendant had
the opportunity to back out of the illegal transaction, but failed to do so. United
States v. Miller, 71 F.3d 813, 816 (11th Cir. 1996).
Here, the evidence clearly demonstrated Gonzalez’s predisposition to
commit the charged crimes: Gonzalez participated in a meeting to discuss the
15
robbery plans on July 5, 2007, and he failed to back out of the plans by the day of
the planned robbery, July 13. On July 13, he rode with his co-conspirators to meet
Garcia, who was supposed to escort them to the stash house. Upon meeting him,
Gonzalez removed a handgun from his waistband and concealed it underneath his
seat in Garcia’s vehicle. He also asked his co-conspirators whether he would have
to beat someone during the robbery. After his arrest, Gonzalez initially told the
police that he was on his way to a strip club, but later confessed that he was going
to commit a robbery. Law enforcement officers seized numerous items from
Garcia’s vehicle, including an AK-47 assault rifle, ammunition, a bayonet, a pistol,
a handgun, a black scarf, camouflage gloves, and a bandana. They recovered a
stun gun and knife from Gonzalez’s person.
In addition, Gonzalez’s previous conviction for possession of marijuana,
although not dispositive, was relevant in showing a predisposition for committing
drug offenses. Even though he did not have a prior firearms conviction, the jury
was entitled to infer that he was willing to carry a firearm and use the firearm
during the robbery based on surveillance tapes taken from Garcia’s vehicle
showing him removing a handgun from his possession. See Miller, 71 F.3d at
816-17.
Moreover, Gonzalez testified that he felt threatened by Garcia to participate
16
in the robbery, but the jury was free to believe that the exact opposite was true.
See Brown, 53 F.3d at 314. Since there was sufficient evidence to prove
Gonzalez’s predisposition to commit the crimes charged, it is unnecessary to
discuss whether Gonzalez produced evidence of inducement.
II.
A.
Hartsfield argues that the district court infringed his Fifth and Sixth
Amendment rights by enhancing his Count 6 sentence under § 924(e) and U.S.S.G.
§ 4B1.3(a), without having the underlying convictions alleged in the indictment
and found by the jury beyond a reasonable doubt.
The armed career criminal guideline states, “A defendant who is subject to
an enhanced sentence under the provisions of 18 U.S.C. § 924(e) is an armed
career criminal.” U.S.S.G. § 4B1.4(a). Section 924(e)(1) provides that “a person
who violates section 922(g) of this title and has three previous convictions by any
court . . . for a violent felony or a serious drug offense, or both . . . shall
be . . . imprisoned not less than fifteen years.” 18 U.S.C. § 924(e)(1).
In Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140
L.Ed.2d 350 (1998), the Supreme Court held that the indictment need not allege
and the jury need not find beyond a reasonable doubt that the defendant had prior
17
convictions in order to enable the district court to use those convictions to enhance
his sentence. Id., 523 U.S. at 226-27, 118 S.Ct. at 1222. “[The] contention that the
district court lacked the authority to sentence [the defendant] as an armed career
criminal because he did not admit in his guilty plea to the facts necessary to being
one is foreclosed by Almendarez-Torres . . . .” United States v. Johnson, 528 F.3d
1318, 1322 (11th Cir. 2008). The Supreme Court in Apprendi explicitly declined
to overrule Almendarez-Torres. Apprendi v. New Jersey, 530 U.S. 466, 490, 120
S.Ct. 2348, 2363, 147 L.Ed.2d 435 (2000). Further, in United States v. Shelton,
400 F.3d 1325 (11th Cir. 2005), we held that the decision in Almendarez-Torres
was “left undisturbed by Apprendi, Blakely,5 and Booker,6” and that “a district
court does not err by relying on prior convictions to enhance a defendant’s
sentence.” Shelton, 400 F.3d at 1329.
Because the indictment did not have to allege and the jury did not have to
find beyond a reasonable doubt that Hartsfield had the prior convictions at issue,
the district court was authorized to use those convictions to enhance his sentence
under § 924(e) and U.S.S.G. §4B1.4.
B.
5
Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
6
United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
18
Hartsfield argues that the district court erred in refusing to apply a two-level
minor-role reduction under U.S.S.G. § 3B1.2(b) in determining his sentence range
under the Sentencing Guidelines. A district court’s determination of a defendant’s
role in an offense constitutes a factual finding to be reviewed only for clear error.
United States v. Rodriguez De Varon, 175 F.3d 930, 937 (11th Cir. 1999). The
defendant bears the burden of proving by a preponderance of the evidence that he
is entitled to a mitigating role reduction. Id. at 939.
The Guidelines provide for a two-level reduction for a minor participant,
which is a defendant “who is less culpable than most other participants, but whose
role could not be described as minimal.” U.S.S.G. § 3B1.2 and comment. (n. 5).
The district court applies a two-part analysis to determine whether to award a
downward adjustment. Rodriguez De Varon, 175 F.3d at 940-41. The court first
determines the defendant’s role in the criminal activity and next compares the
defendant’s conduct to that of his cohorts. Id. at 940-41, 944; see also U.S.S.G. §
3B1.2, comment. (n.3). These factual inquiries “are properly consigned to the
experienced discretion of the district judge.” Rodriguez De Varon, 175 F.3d at
938.
Here, the district court did not clearly err by denying Hartsfield a minor-role
reduction because the record shows that he did not play a minor role. He drove
19
Alameda’s vehicle to meet Garcia, while the vehicle was loaded with firearms and
ammunition. Hartsfield’s role was to go inside the warehouse with Pickett and
steal the cocaine.
C.
Hartsfield argues that the district court erred in refusing to grant a downward
departure from the Guidelines sentence range for having a diminished capacity due
to his mental incapacity under U.S.S.G. § 5K2.13. Section 5K2.13 provides that
court may depart downward from the defendant’s prescribed sentence if the
defendant “was suffering from a significantly reduced mental capacity.” U.S.S.G.
§ 5K2.13. “We may not review a district court’s refusal to grant a downward
departure unless the court mistakenly believed that it lacked the authority to grant
such a departure.” United States v. Hansen, 262 F.3d 1217, 1256 (11th Cir. 2001);
see also United States v. Fossett, 881 F.2d 976, 979-80 (11th Cir. 1989) (holding
that we cannot review a district court’s refusal to grant a downward departure
unless the court erred in concluding it did not have authority to depart).
Our review of the district court’s decision to deny Hartsfield a downward
departure for a reduced mental capacity is precluded because Hartsfield does not
allege and the record does not show that the district court mistakenly believed that
it lacked the authority to grant a downward departure for a reduced mental
20
capacity.
D.
Hartsfield does not challenge the district court’s calculation of the
Guidelines sentence range for any of the Counts of conviction, but he argues that
his combined sentences of 360-months’ imprisonment are unreasonable given the
nature and circumstances of the offense and his history and characteristics.7 As
Hartsfield properly notes, we review sentences under the Guidelines for
reasonableness. United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007).8 “Our
7
See supra note 1. The consecutive sentence of 60 months on Count 5 was mandated by
law, 18 U.S.C. § 924(c)(1)(A)(i) and (D)D(ii). The minimum sentence on Count 6 was 180
month as prescribed by statute, 18 U.S.C. § 924(e)(1). The court chose to make 60 months of
that minimum sentence consecutive to the sentences on Counts 3 and 4. In sum, under these
statutes, the court had to sentence Hartsfield to 180 months on Count 6 and a consecutive 60
months on Count 5, for a total of 240 months on those two counts. The term of imprisonment
for Counts 3 and 4 was 0 to 20 years’ imprisonment, 18 U.S.C. § 1951(a). The Guideline
governing the Hobbs Act convictions, Counts 3 and 4, was provided by U.S.S.G. § 2B1.3. The
Guideline governing Count 6 was provided by U.S.S.G. § 2K2.1. The district court grouped
these three counts together pursuant to U.S.S.G. § 3D1.2(b). The court held Hartsfield
accountable for 70 kilograms of cocaine. Therefore, the Guideline providing the base offense
level was U.S.S.G. § 2D1.1 via § 2X1.1. Under § 2D1.1(a)(3), an offense involving at least 50
kilograms but less than 150 kilograms of cocaine had a base offense level of 36. Hartsfield’s
criminal history category was VI. Coupled with an offense level of 36, this yielded a sentence
range for Counts 3, 4 and 6 of 324 to 405 months’s imprisonment.
8
Booker did not change a district court’s obligation to follow statutory mandatory
minimum sentences. See Shelton, 400 F.3d at 1333 n. 10. When a district court correctly
imposes a statutory mandatory minimum sentence, any error in the Guidelines calculation is
harmless, and we need not address the error. United States v. Raad, 406 F.3d 1322, 1323 n. 1.
Thus, we acknowledge that Hartsfield’s reasonableness argument does not apply to his
mandatory minimum sentence for carrying a firearm during a drug trafficking crime (“Count 5”).
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review for reasonableness is deferential, and the party challenging the sentence has
the burden of establishing unreasonableness.” Id. Sentencing decisions are
reviewed for an abuse of discretion. Gall v. United States, 552 U.S. ___, ___, 128
S.Ct. 586, 597, 169 L.Ed.2d 445 (2007).
A sentence may be procedurally unreasonable if the district court improperly
calculates the guideline range, treats the guidelines as mandatory rather than
advisory, fails to consider the appropriate 18 U.S.C. § 3553(a) sentencing factors,
selects a sentence based on clearly erroneous facts, or fails to explain adequately
the chosen sentence. Id. After we have determined that the sentence is
procedurally sound, Gall directs us to review the substantive reasonableness of the
sentence under an abuse-of-discretion standard. Id. The review for substantive
reasonableness involves examining the totality of the circumstances, including the
extent of any variance from the Guidelines sentence range. Id. “The fact that the
appellate court might reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal of the district court.” Id.Post Booker, district courts first must correctly calculate and consult the
guideline range, and second, must consider the § 3553(a) factors. United States v.
Talley, 431 F.3d 784, 786 (11th Cir. 2005). The § 3553(a) factors include: (1) the
nature and circumstances of the offense and the history and characteristics of the
22
defendant; (2) the need to reflect the seriousness of the offense, to afford adequate
deterrence, to promote respect for the law, to provide just punishment for the
offense, to protect the public, and to provide the defendant with needed educational
or vocational training or medical care; (3) the kinds of sentences available; (4) the
Sentencing Guidelines’ range; (5) pertinent Sentencing Commission policy
statements; (6) the need to avoid unwarranted sentencing disparities among
similarly situated defendants with similar records; and (7) the need to provide
restitution to victims. See 18 U.S.C. § 3553(a)(1)-(7).
In its consideration of the § 3553(a) factors, the district court need not
discuss each factor explicitly. Talley, 431 F.3d at 786. “[A]n acknowledgment by
the district court that it has considered the defendant’s arguments and the factors in
section 3553(a) is sufficient under Booker.” Id. Further, “[t]he weight to be
accorded any given § 3553(a) factor is a matter committed to the sound discretion
of the district court[,]” and we “will not substitute [its] judgment in weighing the
relevant factors.” United States v. Amedeo, 487 F.3d 823, 832 (11th Cir.), cert.
denied, 128 S.Ct. 671 (2007).
Hartsfield has abandoned any challenge to the district court’s sentence range
calculations, as he assumes the ranges were correct. Sepulveda v. U.S. Att’y Gen.,
378 F.3d 1260, 1262 n.1 (11th Cir. 2004) (holding that “[w]hen an appellant fails
23
to offer argument on an issue, that issue is abandoned”). His sentences are
otherwise procedurally reasonable, as the record indicates the district court
considered his sentence ranges as advisory and considered the sentencing factors of
§ 3553(a). In particular, the record shows the court considered Hartsfield’s history
and characteristics.
Likewise, Hartsfield’s sentences are substantively reasonable given his
criminal history and his intended role in the offense. Hartsfield faced a statutory
maximum sentence of life imprisonment for all counts, but the district court only
sentenced him to a total of 360-months’ imprisonment, the bottom of the
applicable sentence range. Therefore, the record supports the district court’s
conclusion that sentences totaling 360 months was appropriate.
III.
We affirm the convictions of Gonzalez, Hartsfield, and Pickett, and the
sentences Hartsfield received. We vacate in part, however, and remand the district
court’s judgment in Gonzalez’s case for correction in accordance with this opinion.
AFFIRMED, in part; VACATED, in part, and REMANDED, with
instructions.
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