United States v. Lionell Sanders ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-12110
Non-Argument Calendar
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D.C. Docket No. 1:13-cr-20782-KMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LIONELL SANDERS,
a.k.a. Pistol,
a.k.a. Brisco,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 14, 2015)
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Before WILSON, JULIE CARNES, and FAY, Circuit Judges.
PER CURIAM:
Lionell Sanders appeals his total 676-month sentence, imposed after
pleading guilty to one count of conspiracy to commit armed robbery, in violation
of 18 U.S.C. § 1951(a); two counts of armed robbery, also in violation of
§ 1951(a); and two counts of using and brandishing a firearm during a crime of
violence, in violation of § 924(c)(1)(A)(iii). 1 On appeal, Sanders argues that the
government breached its post-plea sentencing agreement and that the district court
incorrectly applied several sentencing enhancements. In response, the government
avers, inter alia, that Sanders waived his right to appeal. After determining that
Sanders did not waive his right to appeal, we find that the arguments raised on
appeal are without merit. We thus affirm as to all issues presented.
I. Appeal Waiver
An appeal waiver will be enforced if it was made knowingly and voluntarily.
United States v. Bushert, 997 F.2d 1343, 1350–51 (11th Cir. 1993). To establish
that the waiver was made knowingly and voluntarily, the government must show
that either (1) the district court specifically questioned the defendant about the
1
According to the presentence investigation report, Sanders was involved in a series of
armed robberies. In the commission of these robberies, some of the victims were pistol-
whipped, with at least one victim non-fatally shot.
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waiver during the plea colloquy, or (2) the record makes clear that the defendant
otherwise understood the full significance of the waiver. Id. at 1351.
It is not manifestly clear from the record that Sanders understood the appeal
waiver’s full significance at the time he entered his guilty plea. The district court’s
discussion of the appeal waiver did not clearly convey to Sanders that he was
giving up his right to appeal under most circumstances; indeed, the district court
failed to specifically question Sanders about the appeal waiver during the plea
colloquy. See Bushert, 997 F.2d at 1352–53; see also Fed. R. Crim. P. 11(b)(1)(N)
(requiring the district court to explain the terms of appeal waivers to those pleading
guilty). Even though the plain text of the plea agreement stated that Sanders
discussed the appeal waiver with his attorney, an examination of the text of the
plea agreement, standing alone, is insufficient to find that the defendant made the
appeal waiver knowingly and voluntarily. See Bushert, 997 F.2d at 1352.
Accordingly, we disregard the waiver and proceed to the merits of Sanders’s
appeal. See id. at 1353–54.
II. Post-plea Sentencing Agreement
Where, as here, the defendant failed to object to the alleged breach before
the district court, we review whether the government has breached a plea
agreement for plain error. See Puckett v. United States, 556 U.S. 129, 135, 129 S.
Ct. 1423, 1429 (2009). Sanders characterizes the agreement as the government
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agreeing not to present any evidence as to role and as to the use of a minor. The
government characterizes the agreement as the government agreeing with Sanders
that the enhancements should not apply, but not limiting the government over
presenting evidence or advocating for a sentence. It is not clear from the record
what the verbal post-plea agreement actually entailed, and the solemnization of a
plea agreement does not preclude the government from disclosing pertinent
information to the sentencing court. See United States v. Boatner, 966 F.2d 1575,
1578 (11th Cir. 1992). Under plain error review, “the legal error must be clear or
obvious, rather than subject to reasonable dispute.” See Puckett, 556 U.S. at 134,
129 S. Ct. at 1428. Thus, Sanders has not shown that the government breached its
post-plea agreement under a plain error standard of review.
III. Sentencing Enhancements
Sanders objected to the upward adjustments to his sentence imposed for his
role as a leader or organizer, for using a minor in the commission of the offense,
and for physically restraining a person in the commission of the offense. “We
review a sentencing court’s findings of fact for clear error and its application of the
guidelines de novo.” United States v. Victor, 719 F.3d 1288, 1290 (11th Cir.
2013).
A. Leadership Enhancement
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The Guidelines provide for a two-level upward adjustment if the defendant
was an “organizer, leader, manager, or supervisor” in the criminal activity.
U.S.S.G. § 3B1.1(c). The Guidelines provide for a four-level upward adjustment if
the defendant was an organizer or leader of a criminal activity that involved five or
more participants, or was otherwise extensive. U.S.S.G. § 3B1.1(a).
Here, the district court did not clearly err in applying the § 3B1.1 leadership
enhancements. The factual proffer indicated that Sanders was identified as the lead
robber, that Sanders instructed his co-conspirators, and that Sanders gave orders to
the victims. The government’s witness testified that at least two of the victims
identified Sanders giving orders. At least one victim stated that Sanders gave
directions to a co-defendant during the robbery. See United States v. Lozano, 490
F.3d 1317, 1323 (11th Cir. 2007) (“The assertion of control or influence over only
one individual is enough to support a § 3B1.1(c) enhancement.” (internal quotation
marks omitted)). Also, one of the co-conspirators identified Sanders as the leader
of the robberies. Given this evidence, the district court did not err in concluding
that Sanders exercised “some degree of control, influence, or leadership” during
the robberies, sufficient to support a § 3B1.1 enhancement. See United States v.
Martinez, 584 F.3d 1022, 1026 (11th Cir. 2009) (internal quotation marks omitted).
B. Use of a Minor Enhancement
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The Guidelines provide for a two-level upward adjustment if the defendant
used or attempted to use a person less than eighteen years of age to commit the
offense. U.S.S.G. § 3B1.4. “Used or attempted to use includes directing,
commanding, encouraging, intimidating, counseling, training, procuring,
recruiting, or soliciting.” U.S.S.G. § 3B1.4, cmt. n.1. Further, in the case of a
jointly undertaken criminal activity, the defendant’s relevant conduct includes “all
reasonably foreseeable acts and omissions of others in furtherance of the jointly
undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). The use of a minor
enhancement applies in this case. The government presented evidence that
Sanders used a minor as a lure; this goes beyond mere presence and participation.
See United States v. Taber, 497 F.3d 1177, 1181 (11th Cir. 2007) (per curiam); see
also United States v. McClain, 252 F.3d 1279, 1286 (11th Cir. 2001) (noting that §
3B1.4 is intended “to protect minors as a class from being solicited, procured,
recruited, counseled, encouraged, trained, directed, commanded, intimidated, or
otherwise used to commit crime” (internal quotation marks omitted)).
C. Physical Restraint Enhancement
Section 2B3.1(b)(4)(B) provides for a two-level enhancement if any person
was physically restrained to facilitate commission of the offense or to facilitate
escape. U.S.S.G. § 2B3.1(b)(4)(B). The enhancement applies when the
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defendant’s conduct ensured the victims’ compliance and effectively prevented
them from leaving a location. Victor, 719 F.3d at 1290.
During several of the robberies, Sanders told the victims to freeze, forced the
victims out of their cars, and forced the victims onto the ground at gunpoint. We
have previously upheld the application of the physical restraint enhancement when
the victim was forced to remain in a location at gunpoint. See id. at 1290–91
(upholding physical restraint enhancement when the defendant threatened bank
lobby employee with what the employee believed to be a gun, to prevent her from
escaping); United States v. Jones, 32 F.3d 1512, 1519 (11th Cir. 1994) (per
curiam) (upholding physical restraint enhancement when the defendants forced
bank employees and customers into the safe room and ordered them to lie down on
the floor). Accordingly, the district court did not err in applying the physical
restraint enhancement.
IV. Conclusion
After considering the parties’ briefs and reviewing the record before us, we
affirm the district court.
AFFIRMED.
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