United States v. Shimado Ingraham , 238 F. App'x 523 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 2, 2007
No. 06-11635 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-60179-CR-AJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHIMADO INGRAHAM,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 2, 2007)
Before DUBINA, CARNES and FAY, Circuit Judges.
PER CURIAM:
Shimado Ingraham appeals his 180-month sentence for conspiracy to
possess with the intent to distribute 5 kilograms or more of cocaine, in violation of
21 U.S.C. §§ 841(a)(1) and 846. Without taking a position on the appropriate
standard of review, Ingraham argues that the government breached the plea
agreement because the government promised not to seek additional Guideline
enhancements, but advanced an incompatible position at sentencing when it
endorsed the Guideline enhancements applied in the presentence investigation
report (“PSI”). The government contends that review is for plain error because
Ingraham did not object on this ground before the district court. For the reasons set
forth more fully below, we affirm.
Ingraham’s conviction was based upon a conspiracy in which Ingraham,
Sidney Fertil, and Kevoi Prince met with an undercover agent posing as a
disgruntled drug courier, and planned to rob a stash house utilized by a Colombian
narcotics organization. In the plea agreement, Ingraham acknowledged that the
court would compute a sentence under the Guidelines and determine the applicable
Guidelines by relying, in part, on the probation office’s presentence investigation.
The plea agreement also contained a provision in which the government agreed
that it “[would] not seek additional guideline enhancements in this matter.” At the
change-of-plea hearing, the district court reviewed this provision, explaining that,
2
“[i]n other words, the government is not going to try to increase your sentence in
any way, except for the amount of drugs that it’s going to try to prove or allege
against . . . you that was the subject of the . . . conspiracy.” When preparing the
PSI, the probation officer calculated an advisory Guideline range of 210 to 262
months’ imprisonment, applying 2 enhancements to Ingraham’s base offense level:
(1) a 2-level increase, pursuant to U.S.S.G. § 2D1.1(b)(1), because Ingraham
possessed a firearm during the offense; and (2) a 4-level increase pursuant to
§ 3B1.5(1) & (2)(B), because Ingraham was convicted of a drug-trafficking crime
and used body armor in preparation for the offense.
As sentencing, Ingraham sought a sentence below the guideline range and at
the 120-month mandatory minimum under the 18 U.S.C. § 3553(a) factors. As
part of this argument, Ingraham stated:
[T]here is an agreement with the government that the
government would not seek any other enhancements to the Guideline
range, the base Guideline range.
Basically, there is a six-level total enhancement, which is the
four levels for the bulletproof vest and two levels for the gun. Those
two levels really boost up the score on the Guidelines for the
defendant.
We did negotiate that prior to the plea. We had several
discussions about what the Guidelines score would be and what the
defendant would be subject to, based on the Guidelines and other
factors. In the negotiations, the government provided me with a letter
stating that they would not seek specifically the four-level
enhancement for the bulletproof vest under 3B1.5, if the defendant did
plead guilty within a certain period of time. And he did that. And in
3
the plea agreement, the government did also agree not to seek any
other enhancements.
Taking into consideration the Guidelines themselves, if we
were to go by what the government agreed to, in terms of the point
system, if you remove those six points from the total Guidelines score,
he would be at a level 29 [and] . . . at 108 [months], at the bottom of
the Guidelines, to 135 [months]. Of course, still subject to the
ten-year minimum mandatory . . . .
Ingraham then contended that, taking into account these factors, the dismissal of a
firearm-possession charge in the indictment in order to provide a more appropriate
sentence, and the § 3553(a) factors, he should receive the mandatory minimum
sentence. The government responded:
Your Honor, we believe our position is adequately
set out in the provisions of the plea agreement, and we
stand behind that agreement.
I don’t think it violates that agreement, your
Honor, to say that we don’t believe that what probation
has come up with overstates the defendant’s culpability
or his exposure at this point. And we would simply stand
on our position in the plea agreement.
The district court concluded that the PSI properly applied the Guideline
enhancements, but imposed a downward variance from the Guidelines under the
§ 3553(a) factors to reach a 180-month sentence.
We review de novo the issue of whether the government breached a plea
agreement. United States v. Mahique, 150 F.3d 1330, 1332 (11th Cir. 1998).
However, where this issue is raised for the first time on appeal, our review is for
4
plain error. See United States v. Romano, 314 F.3d 1279, 1281 (11th Cir. 2002).
As to the appropriate standard of review in this case, Ingraham did not object to the
government’s comments as breaching the plea agreement, either after the
comments were made or when given an opportunity to object after the sentence
was imposed. In the context in which the plea agreement was raised, Ingraham
was using the government’s obligation under the agreement as evidence in support
of his position that a 120-month sentence was reasonable. He was not asserting
that the government breached the agreement. Accordingly, we review Ingraham’s
breach-of-plea-agreement claim for plain error. See United States v. Hoffer, 129
F.3d 1196, 1202 (11th Cir. 1997) (“To preserve an issue for appeal, an objection
must be sufficiently detailed to allow the trial court an opportunity to correct any
arguable errors before an appeal is taken.”); see also United States v. Massey, 443
F.3d 814, 819 (11th Cir. 2006) (“The defendant also fails to preserve a legal issue
for appeal if the factual predicates of an objection are included in the sentencing
record, but were presented to the district court under a different legal theory.”).
“We note plain error if (1) error occurred, and (2) the error is plain,
(3) affects the defendant’s substantial rights, and (4) seriously affects the fairness,
integrity, or public reputation of the judicial proceedings.” Romano, 314 F.3d
at 1281. For an error to affect substantial rights, “in most cases it means that the
5
error must have been prejudicial: It must have affected the outcome of the district
court proceedings.” United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770,
1778, 123 L. Ed. 2d 508 (1993). The party seeking to establish plain error has the
burden of persuasion as to prejudice. See United States v. Rodriguez, 398 F.3d
1291, 1299 (11th Cir. 2005). To establish prejudice, the defendant must show a
reasonable probability of a different result. Id.
We note that the government’s comment that it did not “believe that what
probation has come up with overstates the defendant’s culpability or his exposure
at this point” is susceptible to two interpretations, either that the Guideline range in
the PSI would be an appropriate sentence under the § 3553(a) factors, or that the
PSI’s calculation of Ingraham’s Guideline range with the enhancements was
appropriate. However, even if we were to find that the government’s comment
breached the plea agreement and that such an error was plain, Ingraham cannot
meet the third prong of the plain error test because he cannot show prejudice.
As an initial matter, we reject Ingraham’s contention that, because it is
irrelevant whether a breach influenced the sentencing judge, he need not show that
the breach caused prejudice in the form of an increased sentence. In Santobello v.
New York, 404 U.S. 257, 262-63, 92 S. Ct. 495, 499, 30 L. Ed. 2d 427 (1971), the
Supreme Court remanded a case due to the government’s breach of the plea
6
agreement without considering whether the sentencing judge was influenced.
However, in Santobello a timely objection was raised in response to the
government’s statement. See id. at 259, 92 S.Ct. at 497. Furthermore, we have not
relied upon the breach of the plea agreement alone to satisfy the third prong of the
plain error standard. See Romano, 314 F.3d at 1282 (“We have no difficulty in
concluding that the use of the higher sentence range affected appellant’s substantial
rights.”); United States v. Thayer, 204 F.3d 1352, 1356 (11th Cir. 2000) (holding
that “the breach of the plea agreement does not rise to the level of unjustly
affecting a substantial right of the defendant” where the defendant “never argue[d]
that the sentence imposed [was] unfair, rather she argue[d] that she would be
released sooner but for the sentence.”).
As noted above, we concluded in Romano that the defendant’s substantial
rights were affected where the breach resulted in a higher sentencing range under
the Guidelines. Romano, 314 F.3d at 1281-82. Similar to Romano, but for the
6-level increase to Ingraham’s base offense level from the PSI’s enhancements,
Ingraham’s advisory Guideline range would have been 120 to 135 months’
imprisonment (due to the statutory minimum 120-month term of imprisonment)
and not 210 to 262 months’ imprisonment. However, we conclude that this case is
factually distinguishable from Romano.
7
Romano was decided in 2002, when the Guidelines were still mandatory.
See United States v. Booker, 543 U.S. 220, 245-46, 125 S. Ct. 738, 756-57, 160
L. Ed. 2d 621 (2005) (excising statutory provisions to make the Guidelines
“effectively advisory”). In this case, the Guidelines were advisory and the district
court imposed a variance from the 210-to-262-month Guideline range when it
sentenced Ingraham to 180 months’ imprisonment. This variance was still above
the 120-to-135-month Guideline range that would have been applicable had the
enhancements not been included. In addition, before imposing the sentence, the
court stated that it would take the Guidelines into account. Nevertheless, when
imposing the 180-month sentence, the court specifically addressed Ingraham’s
sentence in relation to his 2 co-conspirators. Specifically, the district court set
Ingraham’s sentence a year below Fertil’s sentence. Even though the court found
that Ingraham and Prince generally were equally culpable in this offense, the court
decided to sentence Ingraham to a sentence one year longer than Prince’s to take
account of Ingraham’s numerous prior convictions. The court then commented, “I
don’t think any lower sentence is appropriate under Section 3553(a), given the
nature of the scheme, [and] the fact that these individuals were prepared with body
armor and guns to do violence, if it was necessary, to take the cocaine . . . .” Based
on the district court’s desire to treat Ingraham more harshly than Prince due to
8
Ingraham’s prior convictions and the district court’s comment that a lower
sentence was not appropriate, we are unable to conclude that Ingraham could meet
his burden to establish prejudice.
In light of the foregoing, even if we were to conclude that Ingraham satisfied
the first two prongs of the plain error standard, based on the district court’s
comments at sentencing, Ingraham has failed to establish that the error affected his
substantial rights.
AFFIRMED.
9