United States v. Cornelius Bernard Wilson ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13405
Non-Argument Calendar
________________________
D.C. Docket No. 1:12-cr-00205-ODE-ECS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WOODROW RUDOLPH DIXON, JR.,
a.k.a. Dro,
KIRK L. FLOYD,
a.k.a. Twin,
a.k.a. Kirk Lorin Floyd,
Defendants-Appellants.
________________________
No. 14-13414
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cr-00476-ODE-ECS-1
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CORNELIUS BERNARD WILSON,
a.k.a. Dog-man,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
________________________
(September 18, 2015)
Before ED CARNES, Chief Judge, TJOFLAT and WILSON, Circuit Judges.
PER CURIAM:
Woodrow Rudolph Dixon, Jr., Kirk. L. Floyd, and Cornelius Bernard
Wilson appeal convictions and sentences arising from their conspiracy to rob a
cocaine stash house. Unknown to them, there was no cocaine stash and no house.
After the Bureau of Alcohol, Tobacco, and Firearms (ATF) learned that Dixon
wanted to rob a drug dealer, it launched a reverse sting operation, creating the ruse
of a fake stash house and arresting Dixon, Floyd, and Wilson after they had taken
substantial steps to prepare for the robbery.
Wilson pleaded guilty to one count of conspiracy to possess with intent to
distribute at least five kilograms of cocaine, 21 U.S.C. §§ 841(a)(1),
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841(b)(1)(A)(ii) and 846, and one count of carrying a firearm during and in
relation to a crime of violence, 18 U.S.C. § 924(c)(1)(A)(i).1 Dixon and Floyd had
a joint trial and the jury found them guilty on one count each of conspiracy to
commit Hobbs Act robbery, 18 U.S.C. § 1951(a); carrying a firearm during and in
relation to a crime of violence, 18 U.S.C. §§ 924(c)(1)(A)(i), 924(c)(1)(B)(i) and 2;
and conspiracy to possess with intent to distribute at least five kilograms of
cocaine, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii) and 846. Floyd was also
convicted on one count of possession of a firearm by a convicted felon, 18 U.S.C.
§§ 922(g)(1) and 2. The district court imposed mandatory minimum sentences for
their convictions — 20 years for Dixon, 25 years for Floyd, and 15 years for
Wilson.
Dixon, Floyd, and Wilson raise five contentions in this consolidated appeal.
First, all three contend that the indictment should have been dismissed because the
reverse sting operation constituted outrageous government conduct. Second,
Wilson contends that the district court abused its discretion by denying a motion to
withdraw his guilty plea. Third, Floyd contends that the district court abused its
discretion in admitting statements in which he alluded to shooting and potentially
killing a person in a previous stash house robbery. Fourth, Dixon and Floyd
contend that the district court plainly erred in failing to instruct the jury on
1
Another co-conspirator, Krisdeon Slack, also pleaded guilty. Slack testified for the
government at Dixon and Floyd’s trial, but Wilson did not.
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sentence entrapment. Fifth, Dixon and Floyd contend that the district court abused
its discretion when it declined to adjust their sentences due to sentencing factor
manipulation.
I.
In early 2012, the ATF received information that Dixon wanted to rob a drug
dealer named “Tony.” “Tony” was actually a government agent posing as a drug
buyer as part of an undercover effort to investigate Dixon for cocaine distribution.
Dixon came into contact with Tony through the efforts of a confidential informant
named Brian Guyton, and Dixon told Guyton that he wanted to rob Tony. Dixon
explained to Guyton that robbing drug dealers (as opposed to selling drugs) was
what he really did, that he had robbed a drug dealer in the past, and that he had a
“crew” for these robberies.
When the ATF learned of Dixon’s proposal, it used Guyton to feed
information to Dixon about Tony’s supposed stash house. Dixon, believing the
stash house to be real, recruited accomplices — Floyd, Wilson, and Krisdeon Slack
— to rob it. The ATF also used Guyton to introduce two undercover agents to
Dixon. These agents, going by the names of “Shawn” and “Toby,” posed as
discontented associates of Tony who, in exchange for a share of the loot, would
give Dixon inside information on the location of the stash house and when to rob
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it. Shawn told Dixon that he could guarantee that at least 25 kilograms of cocaine
would be in the stash house.
Dixon hashed out the details of the robbery plan with Floyd, Wilson,
Guyton, and the undercover agents over the course of several meetings and phone
conversations. He came up with the basic plan for them to carry out the robbery by
posing as police officers. At Dixon and Floyd’s request, Guyton obtained an SUV
(which the ATF provided to him) to lend authenticity to their disguise as police
officers. During these meetings, the undercover agents gave Dixon and Floyd
opportunities to back out of the robbery, but the two of them confirmed that the
crew was ready, willing, and able to carry it out.
The day before the robbery, Dixon told Guyton that he would have to miss
the robbery due to an out-of-town work assignment, but that Floyd would be in
charge. On the day of the robbery, Floyd, Guyton, Wilson, and Slack (Dixon’s
replacement) met to go over the final details. Floyd also brought equipment —
guns, police badges, and police vests. Shawn then called Floyd, telling him to
meet at a storage facility. When Guyton, Floyd, Wilson, and Slack arrived, law
enforcement converged on the car and arrested them. Dixon was arrested when he
returned to Atlanta.
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II.
Dixon and Floyd contend that the district court plainly erred in failing to
dismiss the indictment because the government’s extensive involvement in setting
up and executing the reverse sting operation amounted to outrageous conduct. 2
The “outrageous government conduct” defense focuses on whether “the tactics
employed by law enforcement officials to obtain a conviction for conduct beyond
the defendant’s predisposition” violate the Fifth Amendment’s due process
guarantee. United States v. Sanchez, 138 F.3d 1410, 1413 (11th Cir. 1998). The
government contends that this Court’s precedent has rejected due process
challenges to reverse sting operations involving fake stash houses.
We review Dixon and Floyd’s outrageous government conduct challenge
under the plain error standard because they did not raise it in the district court.
United States v. Augustin, 661 F.3d 1105, 1122 (11th Cir. 2011). Under plain
error review, an appellate court “may not correct an error the defendant failed to
raise in the district court unless there is: (1) error, (2) that is plain, and (3) that
affects substantial rights.” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th
2
Wilson also raises this argument, but because he pleaded guilty he has waived this non-
jurisdictional challenge to his plea. See United States v. Augustin, 661 F.3d 1105, 1122 (11th
Cir. 2011) (noting that an outrageous government conduct challenge is non-jurisdictional);
Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992) (“A defendant who enters a plea of
guilty waives all nonjurisdictional challenges to the constitutionality of the conviction, and only
an attack on the voluntary and knowing nature of the plea can be sustained.”). For the reasons
stated below in Part III, we find that Wilson’s plea was voluntary and knowing, and therefore we
do not reach the merits of his outrageous government conduct challenge.
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Cir. 2005) (quotation marks omitted). There is no plain error where “there is no
precedent from the Supreme Court or this Court directly resolving” the issue.
United States v. Joseph, 709 F.3d 1082, 1095–96 (11th Cir. 2013) (quotation marks
omitted). If all these conditions are satisfied, an appellate court “may then exercise
its discretion to notice a forfeited error, but only if . . . the error seriously affects
the fairness, integrity, or public reputation of judicial proceedings.” Id. (quotation
marks omitted). Plain error review “should be exercised sparingly,” and the test
“places a daunting obstacle before the appellant.” Id. (quotation marks and
alterations omitted).
The district court did not err, much less plainly err, when it did not dismiss
the indictment. This Court has repeatedly approved reverse sting operations of the
kind used in this case. See Sanchez, 138 F.3d at 1413 (collecting cases).
Moreover, this defense can “only be invoked in the rarest and most outrageous
circumstances.” United States v. Haimowitz, 725 F.2d 1561, 1577 (11th Cir.
1984) (quotation marks omitted). This Court has yet to see government conduct
that rises to the level of outrageousness required for the defense to succeed. United
States v. Jayyousi, 657 F.3d 1085, 1111 (11th Cir. 2011) (“We have never applied
the outrageous government conduct defense and have discussed it only in dicta.”);
see also United States v. Ciszkowski, 492 F.3d 1264, 1272 (11th Cir. 2007)
(Carnes, J., concurring) (“Unless and until we actually see government conduct
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outrageous enough to motivate a panel of this Court to set aside a
conviction . . . [this] defense[] cannot be found in the law of this circuit.”).
Without binding precedent that actually establishes the existence of the outrageous
government conduct defense — or precedent that directly forbids the kind of
reverse sting operation used here — Dixon and Floyd’s plain error argument
cannot succeed. See Joseph, 709 F.3d at 1095–96.
III.
Wilson contends that the district court abused its discretion in denying his
motion to withdraw his guilty plea before sentencing. He argues that there was no
factual basis for the plea because an affidavit from Dixon (which Wilson filed
before he pleaded guilty) stated that he was not involved in the robbery plan. He
also alleges that his counsel “abandoned” him during the plea process. The
government contends that Wilson’s counsel closely assisted him and that his plea
was knowing and voluntary.
A defendant has no absolute right to withdraw his guilty plea before
sentencing. United States v. Buckles, 843 F.2d 469, 471 (11th Cir. 1988). District
courts can look at the “totality of the circumstances surrounding the plea,” id. at
471–72, to gauge if the defendant has met the burden of showing “a fair and just
reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). These
circumstances include: “(1) whether close assistance of counsel was available; (2)
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whether the plea was knowing and voluntary; (3) whether judicial resources would
be conserved; and (4) whether the government would be prejudiced if the
defendant were allowed to withdraw his plea.” Buckles, 843 F.2d at 471–72. “We
review the district court’s decision under an abuse of discretion standard,” and we
can reverse only if the decision is “arbitrary or unreasonable.” Id. at 471.
The district court did not abuse its discretion in denying Wilson’s motion to
withdraw in light of the facts surrounding the plea and his statements at the plea
colloquy. Wilson filed the Dixon affidavit before he pleaded guilty and yet
decided to plead guilty anyway. His lawyer negotiated with the government to
recommend a lower sentence through the plea agreement compared to what he
would have faced under the indictment, indicating that he did receive close
assistance of counsel. At the plea colloquy, he testified that his lawyer adequately
assisted him and that he was satisfied with his services. He testified that he was
with the robbery crew and knew what they were all going to do. He also testified
that he understood the charges against him, that he wanted to plead guilty, and that
he was making the plea voluntarily. The record does not support his attempt to
override the statements he made at the plea colloquy. See United States v.
Medlock, 12 F.3d 185, 187 (11th Cir. 1994) (“There is a strong presumption that
the statements made during the [plea] colloquy are true.”). The district court acted
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neither arbitrarily nor unreasonably in denying Wilson’s motion to withdraw his
guilty plea.
IV.
Floyd challenges the admission of testimony relating to his previous robbery
of a stash house in North Carolina on the grounds that it violated Federal Rule of
Evidence 404(b). Slack testified that Floyd told him he had been involved in a
stash house robbery in North Carolina and that Floyd had brought up the robbery
on two later occasions. On the first occasion, Floyd said he should get a “teardrop”
tattoo to signify that he had killed someone. On the second occasion, he alluded to
killing someone outside of Georgia.
Floyd argues that the government did not properly link those two statements
to the North Carolina stash house robbery, and therefore they are only probative of
Floyd’s character to commit murder, instead of his intent to conspire to rob the
stash house. See Fed. R. Evid. 404(b) (“Evidence of other crimes, wrongs, or acts
is not admissible in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of . . . intent . . . .”). The
government contends that the statements were properly admitted under Rule
404(b) because they are probative of his intent and (because Floyd raised an
entrapment defense) his predisposition to rob a stash house with a firearm. See
United States v. Duran, 596 F.3d 1283, 1298–99 (11th Cir. 2010) (providing that
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evidence of a defendant’s prior similar acts to show predisposition is admissible to
rebut an entrapment defense and is not “subject to the normal constraints of
evidence admitted pursuant to Rule 404(b)”).
“We review the district court’s evidentiary decision for abuse of discretion.”
United States v. Chavez, 204 F.3d 1305, 1316 (11th Cir. 2000).3 Even assuming
that the district court abused its discretion in admitting the testimony about the
teardrop tattoo and the potential killing outside of Georgia, it was harmless error.
United States v. Hosford, 782 F.2d 936, 939 (11th Cir. 1986) (reviewing for
harmless error evidence admitted under Rule 404(b)). The evidence showed that
Floyd took part in the robbery-planning meetings with Dixon, the undercover
agents, and Guyton. He repeatedly affirmed his willingness to do the job, even
stating that he “was really hungry to get this job done.” Floyd was aware that the
goal of the robbery was to steal cocaine, as he asked one of the agents how much
of it would be in the stash house. And when Dixon could not be present on the day
of the robbery, Floyd took charge — he organized the meeting before the crew
headed off to the storage facility and supplied the equipment and guns. Because
the government presented overwhelming evidence of Floyd’s guilt, Slack’s
3
The government argues that plain error is the proper standard of review because Floyd
did not specifically object at trial to the two statements that form the basis of his argument on
appeal. Floyd argues that his motion in limine and trial objection to Slack’s entire testimony
covers the argument he now makes. We need not resolve this dispute because even if the
strictures of the plain error rule do not apply, the outcome is the same.
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testimony (even if wrongly admitted) was harmless. See United States v. Guzman,
167 F.3d 1350, 1353 (11th Cir. 1999) (observing that “[o]verwhelming evidence of
guilt is one factor that may be considered in finding harmless error”). 4
V.
Dixon and Floyd contend that the district court plainly erred when it failed to
instruct the jury on sentence entrapment. “Sentenc[e] entrapment is the claim that
a defendant, although predisposed to commit a minor or lesser offense, is
entrapped into committing a greater offense subject to greater punishment.”
Sanchez, 138 F.3d at 1414. Because neither Dixon nor Floyd raised this challenge
in the district court, we review only for plain error. Rodriguez, 398 F.3d at 1298.
This challenge fails as a matter of law because “this Circuit has rejected sentence
entrapment as a viable defense.” Sanchez, 138 F.3d at 1414.5
4
The district court also instructed the jury that it should only consider Slack’s testimony
for the purposes permitted by Rule 404(b) (such as intent, plan, or absence of mistake) and
predisposition. These limiting instructions reduced the risk (if any) that Slack’s testimony
impermissibly prejudiced Floyd, further establishing that Slack’s testimony was harmless. See
United States v. Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005) (noting that “the risk of undue
prejudice to [the defendant] was reduced by the court’s limiting instruction” where the court
admitted evidence of prior bad acts under Rule 404(b)); United States v. Stone, 9 F.3d 934, 938
(11th Cir. 1993) (“Few tenets are more fundamental to our jury trial system than the presumption
that juries obey the court’s instructions.”).
5
Dixon argues that the Supreme Court’s decision in Alleyne v. United States,
___ U.S. ___, 131 S. Ct. 2151, 2155 (2013) (holding that any fact that increases the mandatory
minimum sentence for a crime must be submitted to the jury and found beyond a reasonable
doubt), requires us to recognize this defense. Because no decision of this Court or the Supreme
Court “directly resolve[s]” the issue of how Alleyne impacts the availability of a sentence
entrapment defense (if at all), that argument fails under plain error review. See Joseph, 709 F.3d
at 1096.
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VI.
Dixon and Floyd also challenge their sentences on the ground of sentencing
factor manipulation.6 Sentencing factor manipulation “occurs when the
government’s manipulation of a sting operation . . . requires that the manipulation
be filtered out of the sentencing calculus.” Ciszkowski, 492 F.3d at 1270. A
defendant must show that the government engaged in “extraordinary misconduct”
to show sentencing factor manipulation. Id. at 1271. Dixon contends that the
government’s extensive involvement in this operation amounts to extraordinary
misconduct. Floyd contends that the government engaged in extraordinary
misconduct because it allegedly conjured up the 25 kilogram number solely to
increase his penalty exposure. The government contends that the ATF did not
engage in extraordinary misconduct because this Court has approved operations
with similar levels of government involvement. We review criminal sentences for
reasonableness under a deferential abuse of discretion standard. United States v.
Irey, 612 F.3d 1160, 1165, 1188–89 (11th Cir. 2010) (en banc).
6
Wilson adopted part of Dixon’s argument about outrageous government conduct, but it
is not clear from his brief if he also adopted the sentencing factor manipulation argument.
Regardless, he cannot bring this challenge because he knowingly and voluntarily waived the
right to appeal his conviction and sentence to the maximum extent that federal law permits
(except that he reserved the right to appeal a sentence of more than 180 months, a right which
does not apply here because he was sentenced to 180 months exactly). See United States v.
Bushert, 997 F.2d 1343, 1350–51 (11th Cir. 1993) (stating that sentencing appeal waivers may
be enforced if they are knowing and voluntary).
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The district court did not abuse its discretion in rejecting this challenge.
Like the defense of outrageous government conduct, it is not even clear that our
precedent recognizes sentencing factor manipulation as a legitimate challenge to a
sentence. United States v. Docampo, 573 F.3d 1091, 1097–98 (11th Cir. 2009)
(“We have not yet recognized a defense of sentencing factor manipulation or
permitted its application to a defendant’s sentence . . . .”); see also Ciszkowski, 492
F.3d at 1272 (Carnes, J., concurring) (noting this point).
Assuming, however, for the sake of argument that sentencing factor
manipulation is a legitimate defense, Dixon and Floyd cannot prevail on it because
they have not shown that the government engaged in extraordinary misconduct.
Dixon’s argument fails because this Court has rejected challenges to reverse sting
operations with similar levels of government involvement. See, e.g., Ciszkowski,
492 F.3d at 1267, 1271 (rejecting a sentencing factor manipulation challenge
where a government informant initiated contact with the defendant, provided a
gun, and gave him drugs and cash as payment before the arrest). Floyd’s argument
does not fare any better. The evidence at trial showed that in order to maintain the
appearance of a bona fide stash house the government selected the 25 kilogram
amount of cocaine based on what other Atlanta stash houses typically contain.
This decision was permissible, despite its impact on Floyd’s sentence. See id. at
1267, 1271 (finding no extraordinary misconduct where the government supplied
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the defendant with a silencer-equipped pistol to keep up the ruse of a murder-for-
hire operation, even though the use of the silencer added a 30 year mandatory
minimum sentence). The district court did not abuse its discretion in rejecting
Dixon and Floyd’s challenge.
AFFIRMED.
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