United States v. Shawn Michael Simmerer , 156 F. App'x 124 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOVEMBER 16, 2005
No. 05-11144
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 04-00007-CR-ORL-18DAB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHAWN MICHAEL SIMMERER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 16, 2005)
Before DUBINA, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Appellant Shawn Michael Simmerer appeals his conviction and 60-month
sentence for bank fraud in violation of 18 U.S.C. §§ 1344 and 2. On appeal,
Simmerer argues that the district court erred in (1) denying his motion for a
continuance, (2) admitting evidence of flight from law enforcement and giving a
jury instruction as to flight, and (3) imposing an unreasonable sentence in excess of
the Guideline range. He contends that, in imposing an unreasonable sentence, the
court failed to (1) provide advance notice that it was contemplating a sentence in
excess of the Guideline imprisonment range of 27-33 months, (2) apply the
Guidelines in a mandatory fashion in order to avoid an ex post facto violation, and
(3) accurately calculate the sentencing range prescribed by the Guidelines.
I. Motion for a Continuance
We review the district court’s denial of a request for a continuance for abuse
of discretion. United States v. Bowe, 221 F.3d 1183, 1189 (11th Cir. 2000). The
Sixth Amendment to the U.S. Constitution guarantees that any person brought to
trial in any federal court must be afforded the right to assistance of counsel before
he or she can be validly convicted and punished by imprisonment. Faretta v.
California, 422 U.S. 806, 807, 95 S. Ct. 2525, 2527, 45 L. Ed. 2d. 562 (1975). A
trial court’s denial of a motion for continuance may violate this right because it
may infringe upon defense counsel’s ability to prepare an adequate defense. See
2
United States v. Verderame, 51 F.3d 249, 251 (11th Cir. 1995). “There are no
mechanical tests for deciding when a denial of a continuance is so arbitrary as to
violate due process. The answer must be found in the circumstances present in
every case, particularly in the reasons presented to the trial judge at the time the
request is denied.” Id. To show a violation of the right to counsel as the result of a
denial of a motion for continuance, a defendant must show that the denial resulted
in specific substantial prejudice. Id.After reviewing the record, we conclude that the district court did not abuse
its discretion in denying Simmerer’s motion for a continuance. Although
Simmerer listed several grounds as to why he needed a fifth continuance,1 his
motion failed to articulate how he would suffer specific prejudice if the motion was
denied. Thus, the court did not abuse its discretion in denying the motion.
II. Intentional Flight
A. Admissibility
“The ultimate decision on admissibility of flight evidence rests with the trial
judge, whose exercise of discretion will not be overturned absent a showing of
clear abuse.” United States v. Blakely, 960 F.2d 996, 1001 (11th Cir. 1992).
“Evidence of flight is admissible to demonstrate consciousness of guilt and thereby
1
The district court granted Simmerer four previous continuances of his trial date.
3
guilt.” Id. at 1000. However, the probative value of such evidence diminishes “if
the defendant has committed several unrelated crimes or if there has been a
significant time delay between the commission of the crime or the point at which
the accused has become aware that he is the subject of a criminal investigation, to
the time of flight.” Id. at 1000-01. Evidence of flight is probative as
circumstantial evidence of guilt if the following four inferences can be confidently
drawn: “(1) from the defendant’s behavior to flight; (2) from flight to
consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt
concerning the crime charged; and (4) from consciousness of guilt concerning the
crime charged to actual guilt of the crime charged.” United States v. Myers, 550
F.2d 1036, 1049 (5th Cir. 1977).2
After reviewing the record, we conclude that in admitting the evidence of
Simmerer’s flight, the district court did not abuse its discretion. Based on the
circumstances surrounding Simmerer’s arrest, one can make inferences (1) from
his behavior to flight; (2) from flight to consciousness of guilt; (3) from
consciousness of guilt to consciousness of guilt concerning the crime charged; and
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted
as binding precedent the decisions of the former Fifth Circuit handed down prior to October 1, 1981.
4
(4) from consciousness of guilt concerning the crime charged to actual guilt of the
crime charged. Myers, 550 F.2d at 1049.
B. Jury Instruction
We review the legal correctness of a jury instruction de novo, but defer on
questions of phrasing absent an abuse of discretion. United States v. Prather, 205
F.3d 1265, 1270 (11th Cir. 2000). District courts generally have broad discretion
in formulating jury instructions as long as the charge as a whole accurately reflects
the law and the facts. Id. Moreover, we will not reverse a conviction on the basis
of a jury charge unless the issues of law were presented inaccurately or the charge
improperly guided the jury in such a substantial way as to violate due process. Id.We examine “whether the jury charges, considered as a whole, sufficiently
instructed the jury so that the jurors understood the issues and were not misled.”
United States v. Starke, 62 F.3d 1374, 1380 (11th Cir. 1995) (quotation omitted).
We have “consistently approved the inclusion of a jury instruction on flight.”
United States v. Borders, 693 F.2d 1318, 1327 (11th Cir. 1982). An appropriate
jury instruction on flight should correctly caution the jury that it is up to it to
determine whether the evidence proves flight and what weight should be accorded
to such a determination. See id. at 1328.
5
We conclude from the record that the district court did not err in instructing
the jury regarding intentional flight because the jury instruction accurately
reflected the law. The jury instruction in the instant case mirrors the jury
instruction on flight that we upheld in Borders, and it correctly cautioned the jurors
that it was up to them to determine whether the evidence proved flight and the
weight, if any, to be accorded such a determination. See id. at 1328.
III. Sentence in Excess of the Applicable Guideline Range
A. Notice
Fed. R. Crim. P. 32(h) provides:
Before the court may depart from the applicable sentencing range on a
ground not identified for departure either in the presentence report or
in a party's prehearing submission, the court must give the parties
reasonable notice that it is contemplating such a departure. The notice
must specify any ground on which the court is contemplating a
departure.
The Supreme Court has held that before district courts can depart upward on a
ground not identified either in the presentence report or in a prehearing submission
by the government, the courts must, under Fed. R. Crim. P. 32, give parties
reasonable notice that they are contemplating such a ruling and the grounds on
which the departure is based. Burns v. United States, 501 U.S. 129, 138-39, 111 S.
Ct. 2182, 2187, 115 L. Ed. 2d. 123 (1991). However, in Burns the Supreme Court
6
was addressing an upward departure under the then mandatory Sentencing
Guidelines, not a post-Booker variance under an advisory system. See id.Because Simmerer failed to raise this issue in the district court, we review
the argument on appeal for plain error. United States v. Shelton, 400 F.3d 1325,
1328 (11th Cir. 2005). To prevail under this standard, the appellant must prove the
following three requirements: (1) there must be an error; (2) that error must be
plain; and (3) the plain error must affect substantial rights. Id. at 1328-29. Once
the appellant proves these three elements, we may notice the error only if it
“seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 1329. Nonetheless,
an error cannot meet the plain requirement of the plain error rule if it
is not clear under current law. From that principle flows the law of
this circuit that, at least where the explicit language of a statute or rule
does not specifically resolve an issue, there can be no plain error
where there is no precedent from the Supreme Court or this Court
directly resolving it.
United States v. Chau, No. 05-10640, ____F.3d ____ (11th Cir. Sept. 27, 2005)
(quotations and citations omitted).
There is no precedent from this court or from the Supreme Court
establishing that Fed. R. Crim P. 32 applies to a post-Booker upward variance. In
the “absence of any controlling precedent” supporting Simmerer’s proposition that
there was error, United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir.
7
2003), the district court’s failure to give notice in compliance with Rule 32 cannot
be plain error.
B. Ex Post Facto Violation
“The ex post facto clause prohibits the enactment of statutes which make
more burdensome the punishment for a crime, after its commission.” United States
v. Abraham, 386 F.3d 1033, 1037 (11th Cir. 2004) (quotation and alterations
omitted), cert. denied, ____ S. Ct. ____ (2005). Recently, we reviewed a
defendant’s argument that Booker’s remedial provisions, if applied retroactively,
would increase the sentence authorized by the jury’s verdict and, therefore,
constitute an ex post facto law in violation of the defendant’s due process rights.
United States v. Duncan, 400 F.3d 1297, 1306-07 (11th. Cir.), cert. denied, ___ S.
Ct. ___ (2005). We determined that, when the appellant committed the offense of
conviction, “the recognized state of the law looked to the U.S. Code as establishing
maximum sentences.” Id. at 1307-08. We further explained that, before Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) was decided,
every federal court of appeals had held that Apprendi v. New Jersey, 530 U.S. 466,
120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) did not apply to guideline calculations
made within a defendant’s statutory maximum sentence. Id. at 1308. Thus, we
8
concluded that the defendant, who was sentenced within his statutory range, had
sufficient warning to satisfy ex post facto concerns. Id.
The record demonstrates that Simmerer did not preserve this issue below,
and he cannot prevail now because in this instance there was no plain error. See
Shelton, 400 F.3d at 1328-29. Simmerer’s sentence did not violate the Ex Post
Facto Clause because (1) he was sentenced to a term less than the statutory
maximum, and (2) he had sufficient warning of the possible maximum sentence
under the U.S. Code. See Duncan, 400 F.3d at 1308.
C. Reasonableness
In United States v. Booker, the Supreme Court held that the mandatory
nature of the Federal Sentencing Guidelines rendered them incompatible with the
Sixth Amendment’s guarantee to the right to a jury trial. ____ U.S. ____, 125
S. Ct. 738, 749-51, 160 L. Ed. 2d 621 (2005). The Court decided that the
appropriate remedy was to excise two specific statutory provisions which made the
Guidelines mandatory, thereby rendering the Guidelines advisory only. 125 S. Ct.
at 764. The Court explained that, “[w]ithout the ‘mandatory’ provision, the Act
nonetheless requires judges to take account of the Guidelines together with other
sentencing goals” contained in 18 U.S.C. § 3553(a). Id. Section 3553(a) provides
that district courts imposing a sentence must first consider, inter alia, the nature
9
and circumstances of the offense, the history and characteristics of the defendant,
the need for the sentence to reflect the seriousness of the offense, promote respect
for the law, and provide just punishment for the offense, and the kinds of sentences
and sentencing range established by the Guidelines. See 18 U.S.C. § 3553(a).
We are required to “review for unreasonableness” a sentence imposed post-
Booker. Booker, 125 S. Ct. at 765 (quotation and alteration omitted); see also
United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005) (noting that
“Booker established a ‘reasonableness’ standard for the sentence finally imposed
on a defendant”). We have stated that the district court is obligated “to calculate
correctly the sentencing range prescribed by the Guidelines.” Crawford, 407 F.3d
at 1178. “After it has made this calculation, the district court may impose a more
severe or more lenient sentence as long as the sentence is reasonable . . . .” Id. at
1179.
In United States v. Winingear, we recently conducted a review of an
appellant’s sentence for reasonableness and explained that the sentence must be
reasonable in the context of the factors listed in 18 U.S.C. § 3553(a). 422 F.3d
1241, 1246 (11th Cir. Aug. 30, 2005). In conducting our review, we stated that it
does “not apply the reasonableness standard to each individual decision made
during the sentencing process; rather, we review the final sentence for
10
reasonableness.” Id. at 1245. In addition to discussing the nature and
circumstances of the offense and Winingear’s criminal history, we specifically
noted that the sentence imposed was “one-tenth the length of the twenty-year
statutory maximum sentence,” and held that the sentence was reasonable. Id. at
1246.
We conclude that the district court’s sentence in this case was reasonable.
The judge in sentencing Simmerer to 60 months imprisonment explained in great
detail why the Guideline range was inadequate. The judge explicitly relied on
factors listed in § 3553(a). Moreover, Simmerer’s sentence is only one-sixth the
length of the 30-year statutory maximum. See Winingear, 422 F.3d at 1246.
Furthermore, Simmerer’s argument that the court’s sentence was unreasonable
because the court incorrectly calculated his sentencing range when it gave him two
additional criminal points under U.S.S.G. § 4A1.1(d) is without merit. These two
criminal history points are immaterial to the Guideline range calculation because,
with or without these points, his criminal history category would still have been III
and the Guideline range would still have been 27 to 33 months.
11
Conclusion
For the reasons stated above, we conclude that the district court did not err
when it (1) denied Simmerer a fifth continuance of trial, (2) admitted evidence of
intentional flight, (3) gave a jury instruction on intentional flight, and (4) imposed
a sentence in excess of the applicable Guideline range. The 60-month sentence did
not violate ex post facto principles and was not unreasonable. Moreover, Simmerer
could not establish that the court’s failure to provide him reasonable notice of the
sentence was plain error. Accordingly, we affirm Simmerer’s conviction and
sentence.
AFFIRMED.
12