United States v. Efraim Diveroli ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-14241
Non-Argument Calendar
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D.C. Docket No. 6:10-cr-00281-GAP-KRS-1
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
EFRAIM DIVEROLI,
Defendant–Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 11, 2013)
ON PETITION FOR REHEARING
Before CARNES, BARKETT and MARTIN, Circuit Judges.
PER CURIAM:
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Efraim Diveroli’s Petition for Rehearing is DENIED. However, the opinion
of the panel issued on January 30, 2013 is vacated, with this one substituted in its
place.
Efraim Diveroli appeals his conviction and sentence for possessing a firearm
as a convicted felon, in violation of 18 U.S.C. § 922(g)(1).
A. BACKGROUND
In June 2008, a federal grand jury returned an indictment charging Diveroli
with conspiring to commit offenses against the United States, a felony in violation
of 18 U.S.C. § 371. The district court released Diveroli on bond pending trial. The
terms of the bond agreement warned:
The commission of any offense while on pretrial release may result in
an additional sentence upon conviction for such offense to a term of
imprisonment of not more than ten years, if the offense is a felony . . .
. This sentence shall be consecutive to any other sentence and must
be imposed in addition to the sentence received for the offense itself.
Diveroli pleaded guilty to the conspiracy charge in August 2009, and in January
2011, he was sentenced to 48-months imprisonment. Diveroli did not appeal his
conspiracy conviction or sentence.
In October 2010, following his conviction for conspiracy but prior to his
sentencing, Diveroli was charged with the offense that is the basis of this appeal:
possession of a firearm following a previous conviction for a felony, in violation of
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18 U.S.C. § 922(g)(1). The charging document 1 alleged that on August 20, 2010,
during his pretrial release on the conspiracy charge, Diveroli knowingly received
one semiautomatic pistol, two semiautomatic rifles, and assorted rounds of
ammunition, all of which had been transported in interstate commerce. The
information identified Diveroli’s prior felony conviction as his August 2009
conspiracy conviction.
Diveroli pleaded guilty to the firearms offense in November 2010. His plea
agreement stipulated that at the time he received the firearms, he was a convicted
felon, and set forth the factual basis for the offense. It also stated that the
maximum penalty for the offense was ten-years imprisonment; that the district
court would not be bound by terms of the agreement regarding sentencing; and that
the court would be free to impose such sentence that it deemed appropriate, after
consideration of the Presentence Investigation Report (PSI) prepared by the
Probation Office. The agreement did not discuss possible sentencing
enhancements stemming from Diveroli having committed the offense while on
pretrial release. Instead, the government expressly “reserve[d] its right and
obligation to report to the Court and the United States Probation Office” all
relevant factual information, “including the totality of [Diveroli’s] criminal
activities.”
1
For his firearms offense, Diveroli was charged by information. He later waived his right to
prosecution by indictment.
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The agreement also contained a sentence appeal waiver. Diveroli agreed
that he waived his right to appeal his sentence, except for on the ground that (1)
“the sentence exceed[ed] [his] applicable guidelines range as determined by the
Court pursuant to the United States Sentencing Guidelines;” (2) “the sentence
exceed[ed] the statutory maximum penalty”; or (3) “the sentence violat[ed] the
Eighth Amendment.” The agreement also provided that the appeal waiver was
void if the government appealed Diveroli’s sentence. Finally, the plea agreement
contained an integration clause, which stated:
This plea agreement constitutes the entire agreement between the
government and the defendant with respect to the aforementioned
guilty plea and no other promises, agreements, or representations exist
or have been made to the defendant or defendant’s attorney with
regard to such guilty plea.
At his change of plea hearing, the Magistrate Judge explained the terms of
the plea agreement to Diveroli. Diveroli affirmed his understanding that, at
sentencing, the district court would not be bound by the terms of the plea
agreement dealing with sentencing recommendations; that he faced a maximum
sentence of ten years imprisonment but his sentencing guideline range was yet to
be determined; and that there could be additional consequences to pleading guilty
in this case due to his conspiracy conviction. Diveroli also affirmed that he
understood the consequences of the appeal waiver and stated his understanding that
if the sentencing guideline range or the sentence turned out to be something
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different than he expected, he could not withdraw his plea for that reason. After
stating his understanding, Diveroli admitted to committing the firearms offense and
pleaded guilty.
The Magistrate Judge entered a report finding that Diveroli’s guilty plea was
knowing and voluntary, and was supported by an independent factual basis.
Diveroli did not object. Accordingly, the district court accepted the Magistrate
Judge’s recommendation and entered Diveroli’s plea.
Diveroli’s PSI described his offense conduct consistent with the facts
outlined in the plea agreement. It also detailed that when Diveroli received the
semiautomatic firearms from undercover agents, he came within close proximity of
large capacity ammunition magazines for the firearms, sufficient to warrant an
enhancement of his base offense level to 20 under USSG § 2K2.1(a)(4)(B). The
PSI then added a two-level increase because Diveroli’s offense involved at least
three, but not more than seven firearms, pursuant to § 2K2.1(b)(1)(A), and a
three-level increase because he committed the offense while on release in
connection with the conspiracy charge, pursuant to § 3C1.3. Diveroli also received
a two-level reduction for acceptance of responsibility under § 3E1.1(a), and a
one-level reduction for assisting the investigation of the offense, under §§ 3E1.1(a)
and (b). Based on a total offense level of 22 and a criminal history category of II,
Diveroli’s applicable guideline range was 46 to 57-months imprisonment.
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Diveroli objected to his base offense level as calculated by the PSI, arguing
that the firearms he received did not meet the definition of semiautomatic firearms
capable of accepting large capacity magazines. Specifically, he argued that high
capacity magazines were not in close proximity to the firearms that he handled.
Additionally, he objected to the three-level increase pursuant to § 3C1.3, because
he was not specifically charged with having committed a felony while on pre-trial
release under 18 U.S.C. § 3147.
The district court overruled Diveroli’s objections, determined that the PSI’s
recommended offense level and criminal history category were correct, and
sentenced him to 48-months imprisonment, 24 months to run concurrent to
Diveroli’s sentence for his conspiracy conviction, and 24 months to run
consecutive to that sentence. The court then clarified that the 24-month sentence
to run consecutively consisted of 12 months for the instant offense, and 12 months
for having committed a felony while on release for his conspiracy charge, as
required by § 3147. The district court sentenced Diveroli, and this appeal
followed.
B. DISCUSSION
For the first time on appeal, Diveroli argues that his plea was not knowing
and voluntary, and that the government breached his plea agreement by failing to
specify in the agreement that it would seek application of § 3147 and certain
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sentencing guidelines enhancements. He challenges his sentence on a number of
grounds. We consider each of Diveroli’s arguments in turn.
1.
Diveroli’s first claim is that his plea was not knowing or voluntary because
neither the district court nor the government warned him that he would be subject
to an additional sentence under 18 U.S.C. § 3147, and a sentencing enhancement
under USSG § 3C1.3.
Diveroli did not object to the Magistrate Judge’s Rule 11 colloquy or to the
Magistrate Judge’s report finding that his plea was knowing and voluntary. When
a defendant raises a Rule 11 claim for the first time on appeal, we review for plain
error.2 United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005). To
establish plain error, Diveroli must show: (1) error; (2) that is plain; (3) that
affected his substantial rights. Id. “If all three conditions are met, we may
exercise our discretion to recognize a forfeited error, but only if the error seriously
affects the fairness, integrity or public reputation of judicial proceedings.” Id.(quotation marks and alterations omitted). Under the prior panel precedent rule,
we are bound by earlier panel holdings unless and until they are overruled by this
2
It appears that this Court has not, in a published opinion, addressed whether under Federal
Rule of Criminal Procedure 59 a defendant waives a challenge to the knowing and voluntary
nature of his guilty plea if he failed to object to the Magistrate Judge’s report that the plea
complied with Rule 11. We need not address this Rule 59 issue here, however, because for the
reasons explained, Diveroli has failed to show plain error. See United States v. Monroe, 353
F.3d 1346, 1349 (11th Cir. 2003).
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Court sitting en banc or by the Supreme Court. United States v. Smith, 122 F.3d
1355, 1359 (11th Cir. 1997).
We reject Diveroli’s argument that his plea was not knowing or voluntary
because he was not warned regarding the possibility of an additional sentence
under § 3147, and a sentencing enhancement under § 3C1.3. We have previously
rejected a similar claim that the district court committed plain error by failing to
notify the defendant at his plea colloquy that § 3147 and its corresponding
Guidelines provision, § 2J1.7—§ 3C1.3’s predecessor3—would apply at
sentencing. United States v. Tyndale, 209 F.3d 1292, 1296 (11th Cir. 2000); see
also United States v. Bozza, 132 F.3d 659, 661 (11th Cir. 1998) (concluding that
the district court was not required to notify the defendant of potential sentencing
enhancements prior to accepting his guilty plea). Neither this Court sitting en
banc, nor the Supreme Court has overruled Tyndale or Bozza. Therefore, we are
bound by our Circuit’s precedent and conclude that the district court did not
commit plain error when it accepted Diveroli’s plea.
2.
3
In November 2006 § 2J1.7 was deleted from the Guidelines and § 3C1.3 was added. See
USSG App. C, Amend. 684. Like the former § 2J1.7, § 3C1.3 provides for a 3-level increase in
the offense level if a statutory sentencing enhancement under 18 U.S.C. § 3147 applies to the
defendant’s case. USSG § 3C1.3. Amendment 684 to the Sentencing Guidelines explains that
the enhancement provision was moved from Chapter Two to Chapter Three in order to ensure
that the “enhancement is not overlooked and is consistent with other enhancements in Chapter
Three, all of which apply to a broad range of offenses.” USSG App. C, Amend. 684 comment.
(backg’d.).
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Next Diveroli argues that the government’s failure to include in the plea
agreement the possibility of certain sentencing guidelines enhancements, coupled
with its advocacy for imposition of the § 3147 sentence, was a breach of the
agreement. Diveroli contends that had he known he would be subject to these
sentence enhancements, he would have gone to trial.
Because Diveroli also raises this argument for the first time on appeal, we
review whether the government breached the plea agreement for plain error only.
See United States v. Romano, 314 F.3d 1279, 1281 (11th Cir. 2002). “The
government is bound by any material promises it makes to a defendant as part of a
plea agreement that induces the defendant to plead guilty.” United States v.
Taylor, 77 F.3d 368, 370 (11th Cir. 1996). “Whether the government violated the
agreement is judged according to the defendant’s reasonable understanding at the
time he entered his plea.” United States v. Boatner, 966 F.2d 1575, 1578 (11th Cir.
1992). However, even if it is arguable that the government misled Diveroli and
that Diveroli plausibly misunderstood the plea agreement, “we cannot enforce an
agreement that was never agreed on with specificity.” United States v. Al-Arian,
514 F.3d 1184, 1193 (11th Cir. 2008) (quotation marks omitted).
The plea agreement here did not address the possibility of a § 3147 sentence.
Nor did it discuss the guidelines enhancements to which Diveroli now objects,
specifically USSG §§ 2K2.1(a)(4) and 3C1.3. On the other hand, the agreement
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included an integration clause stating expressly that the “plea agreement
constitutes the entire agreement between the government and the defendant” and
that “no other promises, agreements, or representations exist.” The omission of
any reference to the enhancements to which Diveroli objects, coupled with the
integration clause means that Diveroli could not reasonably assume that the
government would not seek these sentence enhancements, if they applied. See Al-
Arian, 514 F.3d at 1192–93 (noting the inclusion of an integration clause in the
plea agreement to reject the appellant’s argument that the government implicitly
agreed to certain terms). 4 Therefore, the government did not breach the terms of
the plea agreement.
3.
Finally, Diveroli argues that, for a number of reasons, his sentence must be
vacated even if his conviction is affirmed. These arguments include that: (1) the
district court’s imposition of a § 3147 sentence violated his Fifth and Sixth
Amendment rights under Apprendi v. New Jersey; 530 U.S. 466, 120 S. Ct. 2348(2000); (2) § 3147 is unconstitutionally vague; (3) the § 3147 sentence was illegal
because he was never charged with violating § 3147 and did not plead guilty to it;
(4) the court erred in its construction of § 3147 and USSG § 3C1.3; and (5) the
4
This conclusion is further supported by the agreement’s reserve clause, expressly obligating
the government “to report to the Court and the United States Probation Office” all relevant
information concerning the “the totality of [Diveroli’s] criminal activities, . . . not limited to the
count to which [Diveroli] pleads.”
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government manipulated and concealed facts in order to argue for the imposition
of a § 2K2.1(a)(4)(B) enhancement to his base offense level.
Normally, we review the district court’s interpretation of the Guidelines de
novo and its factual findings for clear error. United States v. Jordi, 418 F.3d 1212,
1214 (11th Cir. 2005). Constitutional challenges to a sentence are also ordinarily
reviewed de novo. United States v. Chau, 426 F.3d 1318, 1321 (11th Cir. 2005).
Here, however, the government asserts the appeal waiver in the plea agreement as
a bar to review of Diveroli’s claims. We will therefore first review the validity of
the appeal waiver. See United States v. Johnson, 541 F.3d 1064, 1066 (11th Cir.
2008).
We review the validity of an appeal waiver de novo. Id. An appeal waiver
will be enforced if it was made knowingly and voluntarily. See id. To establish
that the waiver was made knowingly and voluntarily, the government must show
either that (1) the district court specifically questioned the defendant about the
waiver during the plea colloquy, or (2) the record ensures that “the defendant
otherwise understood the full significance of the waiver.” See id.Here, the record indicates that the Magistrate Judge specifically questioned
Diveroli about the waiver during the plea colloquy and that Diveroli understood its
full significance. The plea agreement spelled out the waiver with specificity, and
the Magistrate Judge explained the waiver and its exceptions to Diveroli when he
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changed his plea to guilty. Diveroli affirmed that he understood the waiver, and
ensured the Magistrate Judge that he intended to give up his right to appeal his
sentence on all grounds except that (1) his sentence exceeded his applicable
guidelines range as determined by the district court; (2) his sentence exceeded the
statutory maximum penalty for his offense; (3) his sentence violated the Eighth
Amendment; or (4) the government appealed his sentence. Because Diveroli’s
waiver was made knowingly and voluntarily, and none of his arguments regarding
his sentence satisfy its exceptions, he is barred from raising these challenges on
appeal.
C. CONCLUSION
For these reasons, Diveroli’s conviction and sentence is
AFFIRMED.
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