United States v. Juan Mark Jones , 480 F. App'x 555 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 9, 2012
No. 11-14008
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 1:09-cr-00017-KD-M-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
JUAN MARK JONES,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(July 9, 2012)
Before EDMONDSON, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Juan Mark Jones appeals following his convictions and 480-month total
sentence for conspiracy to manufacture methamphetamine and possessing a
firearm during a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A) and (c)(1)(C),
21 U.S.C. § 846. On appeal, Jones raises three challenges to his convictions:
(1) the district court erred in denying his motions, filed in response to the
government’s refusal to move for a sentence reduction based on his cooperation,
to withdraw his plea, or, alternatively, order “specific performance at sentencing”
by ordering the government to file a substantial-assistance motion; (2) the factual
basis supporting one of his firearm-in-furtherance convictions was insufficient;
and (3) trial counsel was ineffective. He also challenges his sentence as
unreasonable. For the reasons set forth below, we affirm Jones’s convictions and
total sentence.
I.
A federal grand jury charged Jones with various counts, including, inter
alia, conspiracy to possess with intent to distribute 500 grams or more of
methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A) (Count 1);
and two counts of possessing a firearm during and in relation to a drug trafficking
crime, on July 31, 2008, and December 29, 2008, respectively, in violation of
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18 U.S.C. § 924(c)(1) (Counts 4 and 9). Through appointed counsel Cindy Powell,
Jones initially pled not guilty to all charges.
Pursuant to a written agreement with the government, Jones later indicated
that he would plead guilty to the three aforementioned offenses. Jones also agreed
to cooperate with the government. In exchange, the government agreed that, if
Jones provided:
full, complete, truthful and substantial cooperation to the
United States, which results in substantial assistance to the
United States in the investigation or prosecution of another
criminal offense, a decision specifically reserved by the
United States in the exercise of its sole discretion, then the
United States agrees to move for a downward departure in
accordance with Section 5K1.l of the United States
Sentencing Guidelines or Rule 35 of the Federal Rules of
Criminal Procedure, whichever the United States deems
applicable.
The government agreed that if it determined that Jones’s cooperation did not qualify
as substantial assistance, it would “recommend . . . that the defendant receive a
sentence at the low end of the applicable advisory guideline range.”1
Attached to the plea agreement was a “factual resume,” in which Jones
stipulated that the government could prove certain facts beyond a reasonable doubt.
Specifically, the police began investigating Jones after several incidents in which he
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The government also agreed to dismiss the other seven counts of the indictment.
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came to their attention in connection with methamphetamine manufacturing, and
learned from cooperating witnesses that he: (a) paid others to obtain pseudoephedrine
for him, which he cooked into methamphetamine; (b) sold methamphetamine directly
to customers; (c) “liked to carry a gun”; and (d) had a trailer on Blackwell Nursery
Road.
The factual resume further stipulated that, on December 29, 2008, police
responded to a trailer at 4470 Blackwell Nursery Road after receiving anonymous tips
concerning methamphetamine-related activity at that address, and observed Jones
inside. Police officers asked Jones to come outside, and, during an ensuing pat-down
search, recovered a half-gram of methamphetamine from his pants pocket. In a
garbage pail near the steps, police observed empty packs of pseudoephedrine and a
funnel with white powder residue. Police also observed propane tanks and large
containers in an open utility trailer on the premises. Based on this information, the
police executed a search warrant and recovered propane tanks, caustic soda, jars, and
a food processor with white powder residue on them, ammonia, Draino, coffee filters,
plastic tubing, measuring cups, and empty pseudoephedrine boxes on the premises.
Inside the trailer, police recovered pseudoephedrine, digital scales, baggies, and glass
pipes with methamphetamine residue. Police also recovered a number of firearms,
including two shotguns, four rifles, three handguns, and a crossbow.
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Also, during a post-arrest interview, Jones admitted that he resided alone at the
trailer on the 4470 Blackwell Nursery Road, and that everything inside was his. He
admitted to police that one of the pistols and one of the shotguns belonged to him. He
alleged that an acquaintance set him up by leaving the utility trailer on his property.
At his plea hearing in March 2009, Jones verified that trial counsel had
explained his charges to him. He was satisfied with counsel’s representation thus far.
Jones confirmed that he read the written plea agreement before signing it, and
reviewed it with counsel. He also confirmed that he had not received any promises
apart from those contained therein.
The district court informed Jones that Count 1 carried a statutory imprisonment
range of 10 years to life; Count 4 carried a 5-year term of imprisonment, consecutive
to the other counts; and Count 9 carried a 25-year term of imprisonment, consecutive
to the other counts. The court explained that, “if there is not substantial cooperation,”
it had “no authority except to give [him] forty years.” Jones indicated that he
understood.
The district court invited the government to recite the elements of each count.
The government then proffered, in relevant part, that Jones was present when the
police executed a search warrant on a residence on Blackwell Nursery Road, and
discovered a methamphetamine manufacturing lab. Police found guns at this address
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as well, and Jones “claimed possession of those firearms.” Prior police investigation
revealed that Jones had engaged in methamphetamine manufacturing activity. Jones
admitted that the government could prove the facts both as proffered and as stated in
the factual resume. The district court , finding that Jones pled knowingly and
voluntarily and an adequate factual basis supported the charges, accepted his plea to
Counts 1, 4, and 9.
Jones filed, and the district court granted, a number of unopposed motions to
continue sentencing so that he could pursue opportunities to cooperate. In December
2010, however, Powell moved to withdraw as trial counsel based on a potential
conflict of interest that had arisen after Jones pled guilty. The district court granted
Powell’s motion and appointed substitute counsel.
Through substitute counsel, Jones moved to withdraw his guilty plea based on
previous trial counsel’s ineffective assistance and the government’s failure to file a
substantial-assistance motion. At a hearing on this motion, Jones admitted that
previous trial counsel’s actual conflict came about after he entered his plea. The
court denied Jones’s motion to withdraw his guilty plea, but, in the alternative,
construed Jones’s arguments to raise a claim that the government violated his due
process rights for failing to file a substantial-assistance motion. After permitting
Jones to call several witnesses who testified about the extent of his cooperation, the
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court directed him to file a written motion explaining his due process argument and
the relief that he sought.
In accordance with the district court’s directive, Jones filed a motion for
“specific performance at sentencing,” in which he requested that the court compel the
government to file a substantial-assistance motion pursuant to U.S.S.G. § 5K1.1.
Jones contended that the government breached the plea agreement because it refused
to file a § 5K1.1 motion despite his substantial assistance. He also contended that the
government acted in bad faith, and without a rational relation to a legitimate purpose,
by inducing him to plead guilty with the promise that it would fairly evaluate his
cooperation, but then arbitrarily refusing to file a substantial-assistance motion.
To support his motion for specific performance, Jones submitted several sworn
affidavits from criminal defense attorneys who had negotiated pleas with Assistant
United States Attorney (“AUSA”) Glorida Bedwell, the prosecutor in his case. These
attorneys discussed instances where their clients cooperated pursuant to their plea
agreements with the government, but AUSA Bedwell refused to file a substantial-
assistance motion, or did not file one at the time they desired.
At Jones’s sentencing hearing, the district court addressed this motion. The
government submitted that part of the reasoning behind its decision to refuse § 5K1.1
reductions was to maintain a defendant’s credibility in future prosecutions, explaining
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that opposing attorneys could exploit successive sentence reductions on cross-
examination. In addition, it had an interest in preserving an incentive for defendants
to continue assisting investigators after they were sentenced. The government further
explained that, when a criminal defendant had cooperated in a way that could qualify
as substantial assistance, its policy was to have the individual prosecutor submit a
written form to the criminal division chief, who made the ultimate decision on
whether to file. It noted that AUSA Bedwell had in fact submitted a substantial-
assistance form in Jones’s case, but the criminal division chief decided against filing
a motion at that point because there still were ways in which Jones could be helpful
and he wanted to maximize Jones’s credibility.
The district court denied Jones’s motion for specific performance. The court
credited the government’s description of its process when deciding whether to file
substantial-assistance motions. Because AUSA Bedwell’s decision was subject to
supervisory oversight, it found that her standards were not arbitrary, but subject to a
policy that treated all defendants equally. It further found that the government’s
articulated reason in Jones’s particular case, namely, ensuring that he continued to
cooperate, was rationally related to a legitimate government purpose.
Proceeding to imposition of Jones’s sentence, the government recommended
“a sentence within the guidelines as set forth in the PSI.” The district court observed
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that, although the guidelines recommended a total sentence of at least 570 months,
the mandatory minimum total of 40 years, or 480 months, adequately satisfied the
goals in 18 U.S.C. § 3553(a). Accordingly, the district court sentenced Jones to
480 months, which consisted of consecutive imprisonment terms of 120 months on
Count 1, 60 months on Count 4, and 300 months on Count 9.
II.
We review the district court’s denial of a motion to withdraw a guilty plea
for abuse of discretion. United States v. Brehm, 442 F.3d 1291, 1298 (11th Cir.
2006). We generally review de novo whether the government has breached a plea
agreement. United States v. De La Garza, 516 F.3d 1266, 1269 (11th Cir. 2008).
But if that issue was not raised before the district court, it will be reviewed only
for plain error. Id. Under this standard, a criminal defendant must prove that
(1) an error occurred; (2) the error was plain; (3) the error affected his substantial
rights; and (4) the error seriously affected the fairness, integrity, or public
reputation of judicial proceedings. Id.The favored remedy for a breach of the plea agreement is specific
performance, particularly where there is little question that the defendant entered
the plea knowingly and voluntarily. United States v. Johnson, 132 F.3d 628, 631
(11th Cir. 1998). “[W]hen a plea rests in any significant degree on a promise or
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agreement of the prosecutor, so that it can be said to be part of the inducement or
consideration, such promise must be fulfilled.” Santobello v. New York, 404 U.S.
257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971). But the government does not
breach the plea agreement by declining to file a substantial-assistance motion
when the plea agreement leaves that decision to the government’s sole discretion.
See United States v. Forney, 9 F.3d 1492, 1499-1500 & n.2 (11th Cir. 1993).
A court may permit a defendant to withdraw his guilty plea prior to
sentencing if it finds that the defendant established a “fair and just reason” for
doing so. Fed.R.Crim.P. 11(d)(2)(B). In determining if a reason is fair and just
courts consider whether: (1) the defendant benefitted from “close assistance of
counsel” at the time; (2) the plea was knowing and voluntary; (3) judicial
resources would be conserved; and (4) granting the defendant’s motion would
prejudice the government. Brehm, 442 F.3d at 1298 (upholding the district court’s
denial of a motion to withdraw a guilty plea where the defendant expressed
satisfaction with counsel’s representation, confirmed that he understood the
applicable sentencing consequences, had his sentencing hearing continued three
times, and did not move to withdraw for approximately eight months after he
pled); see also United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005)
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(discussing the three “core concern[s]” of Fed.R.Crim.P. 11 that must be satisfied
for a plea to be knowing and voluntary).
Generally, courts will “not evaluate the assistance rendered by a defendant
offering cooperation as a term of his plea agreement unless and until the
government makes a . . . motion for downward departure based on substantial
assistance.” Forney, 9 F.3d at 1501. In the absence of an express promise on the
government’s part to file a substantial-assistance motion, courts retain the
authority to review the government’s failure to do so only for a constitutionally
impermissible motivation, such as “race, religion or other arbitrary classification.”
Id. at 1501-02 & n.4. To obtain judicial review of the government’s decision on a
substantial-assistance motion, a defendant must not simply allege a constitutional
violation, but make a “substantial showing” to this effect. Forney, 9 F.3d at 1502.
When a defendant claims merely that he has provided substantial assistance,
or supplements that claim with “additional but generalized allegations of improper
motive”—he will not be entitled to relief. Wade v. United States, 504 U.S. 181,
186, 112 S.Ct. 1840, 1844, 118 L.Ed.2d 524 (1992). Similarly, the government’s
decision to file a § 5K1.1 motion, or decline to do so, “is not reviewable for
arbitrariness or bad faith.” Forney, 3 F.3d at 1502 & n.5 (quotation omitted).
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We conclude that both of Jones’s motions lacked merit. Insofar as Jones
sought relief based on a perceived breach of his plea agreement, no such “breach”
occurred. See Forney, 9 F.3d at 1499-1500. Jones entered into a plea agreement
with the government that left to the government’s “sole discretion” several
pertinent issues, including: (1) whether his cooperation amounted to “substantial
assistance”; and (2) the applicability of U.S.S.G. § 5K1.1, as opposed to Rule 35.
Thus, contrary to Jones’s characterization of the plea agreement, the government
only agreed to consider his cooperation in the context of a future substantial-
assistance motion, not to actually file one. See Forney, 9 F.3d at 1500 n.2.
Irrespective of Jones’s subjective intent at the time he signed the plea agreement,
given the agreement’s written terms—as well as his denial at his plea hearing that
he was promised anything outside of the written plea agreement—he failed to
demonstrate that he was induced, as a matter of law, to plead guilty by a promise
that he would receive a substantial- assistance reduction. Cf. Santobello, 404 U.S.
at 262, 92 S.Ct. at 495.
There are no other indications that Jones’s should have been allowed to
withdraw his plea. See Brehm, 442 F.3d at 1298. Jones expressly stated at his
plea hearing that he was satisfied with trial counsel. Additionally, the district
court confirmed that he understood: (1) the 40-year minimum total sentence that
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he faced on the three offenses to which he pled; (2) its inability to avoid this total
sentence absent a substantial-assistance motion filed by the government; (3) the
elements of each charged offense; and (4) the rights he would relinquish by
persisting with a guilty plea. See Moriarty, 429 F.3d at 1019-20. We also note
that the 15-month lapse between Jones’s guilty plea and his motion, during which
the court continued his sentencing hearing on several occasions, suggested that the
withdrawal of his plea would waste judicial resources and prejudice the
government. See Brehm, 442 F.3d at 1298-99.
Moreover, Jones articulated no basis upon which to compel specific
performance. See, e.g., Johnson, 132 F.3d at 631. At the outset, we observe that
the quality of Jones’s assistance to the government was largely irrelevant to both
the district court’s conclusion and our resolution of his appellate challenge. See
Wade, 504 U.S. at 187, 112 S.Ct. at 1844. Insofar as Jones attempted to make his
case with affidavits from other attorneys that alleged a pattern of improper
inducement on the part of the government, these affidavits amounted to little more
than the attorneys’ subjective opinions that the government acted in bad faith by
failing to file substantial-assistance motions in their own clients’ cases. See Wade,
504 U.S. at 186, 112 S.Ct. at 1844; Forney, 9 F.3d at 1502 n.5. In any event,
absent authority to support his proposition that the government’s “pattern” of
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inconsistency in the manner in which it declined to file § 5K1.1 motions amounted
to an “arbitrary classification,” Jones’s affidavits failed to support an allegation,
much less a “substantial showing,” of a constitutional violation. See Forney, 9
F.3d at 1502.
Finally, Jones’s alternative argument that the government breached the plea
agreement by recommending a within-guideline sentence, which he raised for the
first time on appeal, cannot succeed under the plain error standard. See De La
Garza, 516 F.3d at1269. While the government did appear to breach its promise
in the plea agreement to recommend a sentence at the low end of the guideline
range, he cannot show an affect on his substantial rights because the government’s
recommendation of a within-guideline sentence, had no apparent effect on the
district court, which imposed a total sentence nearly eight years shorter than the
low end of his guideline range. See United States v. Pantle, 637 F.3d 1172, 1177-
78 (11th Cir. 2011) (holding that, even if the district court erroneously calculated a
defendant’s offense level, that error did not affect his substantial rights because it
was unclear that he would not have received the same sentence but for the error)
III.
When a defendant fails to object to an asserted Fed.R.Crim.P. 11 violation
before the district court, we review for plain error. Moriarty, 429 F.3d at 1019.
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The defendant bears the burden to satisfy all requirements of the plain error test.
Id. To prevail under this standard in the context of a Rule 11 error, a defendant
“must show a reasonable probability that, but for the error, he would not have
entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct.
2333, 2340, 159 L.Ed.2d 157 (2004).
One of the requirements in Rule 11 is that the district court independently
“determine that there is a factual basis for the plea.” Fed.R.Crim.P. 11(b)(3).
When evaluating if a district court complied with this provision, we inquires
“whether the district court was presented with evidence from which it could
reasonably find that the defendant was guilty.” United States v. Camacho,
233 F.3d 1308, 1317 (11th Cir. 2000) (quotation and alteration omitted). Relevant
to this inquiry are the facts included in the government’s proffer, and, if
applicable, any facts to which the defendant has stipulated in writing as part of the
plea agreement. See id.; United States v. Frye, 402 F.3d 1123, 1128-29 (11th Cir.
2005) (evaluating the sufficiency of the factual basis to prove a § 924(c)(1)
offense in light of the “factual resume”).
To establish a § 924(c)(1) violation, the government must show that: (1) the
defendant possessed the firearm; and (2) the firearm in question “helped,
furthered, promoted, or advanced” the alleged drug trafficking activity. See United
15
States v. Timmons, 283 F.3d 1246, 1252 (11th Cir.2002). Regarding the first
element, when a defendant owns or otherwise exercises control over a residence
where contraband is found, he may be found in constructive possession of the
contraband. United States v. Garcia, 447 F.3d 1327, 1338 (11th Cir. 2006).
Regarding the second element, there must be “some nexus between the firearm and
the drug selling operation.” Timmons, 283 F.3d at 1253 (holding that the
government could prove that the guns were possessed in furtherance of drug
trafficking with evidence that guns were found in a residence along with materials
indicative of drug distribution). In other words, the gun must “facilitate, or have
the potential of facilitating, the drug trafficking offense.” Frye, 402 F.3d at 1128
(quotation omitted).
Here, Jones, who did not raise an objection before the district court to the
factual basis supporting Count 9, fails to demonstrate plain error in the court’s
acceptance of his guilty plea in this respect. See Moriarty, 429 F.3d at 1019.
Between the proffer and the factual resume, the district court had sufficient facts
upon which to support Jones’s plea. Fed.R.Crim.P. 11(b)(3); Frye, 402 F.3d at
1128-29. Significantly, Jones agreed to all facts contained therein. The proffer
indicated that, on December 29, 2008, the date charged in Count 9, police
discovered a methamphetamine manufacturing lab at his address. The factual
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resume elaborated that the police also found methamphetamine on his person, and
pseudoephedrine, digital scales, and baggies inside his trailer. Because the
recovered guns were found in close proximity to these materials, a fact-finder
could infer that they furthered drug-trafficking activity. See Timmons, 283 F.3d at
1253.
Although Jones correctly highlights that he denied to police that he owned
the methamphetamine manufacturing materials outside of the trailer, this fact did
not exonerate him, as he insists. Rather, the fact that he resided alone at the trailer
gives rise to an inference of possession, and, in any event, Jones expressly
admitted that he resided in the trailer and everything inside it, including materials
indicative of drug trafficking, belonged to him. See Garcia, 447 F.3d at 1338. As
such, there was sufficient evidence upon which the district court reasonably could
infer that Jones’s guns facilitated, or at least had the potential to facilitate, his
methamphetamine manufacturing activities. See Camacho, 233 F.3d at 1317;
Frye, 402 F.3d at 1128.
IV.
Where appropriate, we review claims for ineffective assistance of counsel
de novo as mixed questions of law and fact. Caderno v. United States, 256 F.3d
1213, 1216-17 (11th Cir. 2001).
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In Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 155 L.Ed.2d 714(2003), the Supreme Court concluded that failure to raise ineffective-assistance-
of-counsel claims on direct appeal would not bar such claims from being raised for
the first time in a collateral attack. Id. at 509, 123 S.Ct. at 1696. In arriving at this
conclusion, the Supreme Court held that in most cases, the record was inadequate
to raise an ineffective-assistance claim on direct appeal because the trial evidence
was devoted to guilt-or-innocence issues, as opposed to the reasoning behind
counsel’s actions. Id. at 504-05, 123 S.Ct. at 1694. It observed that the record
“may contain no evidence of alleged errors of omission, much less the reasons
underlying them.” Id. at 505, 123 S.Ct. at 1694. Absent a factual record tailored
to this purpose, consideration of ineffective-assistance claims on direct appeal
risked the rejection of meritorious claims and wasted judicial resources. Id. at
506, 123 S.Ct. at 1695. By contrast, it held that the district court on collateral
review could handle such claims more efficiently. Id. at 506-07, 123 S.Ct. at
1695. As such, “an ineffective assistance of counsel claim is properly raised in a
collateral attack on the conviction under 28 U.S.C. § 2255,” as opposed to direct
appeal. United States v. Merrill, 513 F.3d 1293, 1308 (11th Cir. 2008) (quotations
and alteration omitted).
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We note that both Jones and the government concur that the record is
sufficient to adjudicate the merits of his ineffective assistance claims.
Nevertheless, consideration of these claims on direct appeal is unwarranted.
Significantly, Jones’s ineffective-assistance allegations that he raises on appeal
include errors of omission, such as the failure to adequately oversee his debriefing,
which trial counsel has yet to address. See Massaro, 538 U.S. at 505-06, 123 S.Ct.
at 1694. Moreover, even if the available record facially contradicted one or more
of Jones’s claims, he raises other claims that, despite the government’s insistence,
are not “frivolous,” and it arguably would be inappropriate for us to resolve them
in the first instance. See Merrill, 513 F.3d at 1308; see also United States v.
Barnette, 10 F.3d 1553, 1556 (11th Cir. 1994) (“an appellate court does not find
facts”). Accordingly, we decline to consider Jones’s ineffective-assistance
challenge.
V.
Generally, we examine a defendant’s sentence for both procedural and
substantive reasonableness under an abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 41, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007). But district
courts remain bound by mandatory minimum sentences set forth in criminal
statutes. United States v. Shelton, 400 F.3d 1333 n.10 (11th Cir. 2005).
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In the present case, Jones’s 40-year total sentence is not reviewable for
“reasonableness” because it represented the aggregate of the mandatory minimum
terms of imprisonment on Counts 1, 4, and 9. See Shelton, 400 F.3d at 1333 n.10;
see also 18 U.S.C. § 924(c)(1)(A), (c)(1)(C); 21 U.S.C. § 841(b)(1)(A). Jones’s
explanations as to why his 40-year total sentence was both unique and
unreasonable did not permit the district court to depart from controlling precedent
and sentence him below the minimum statutory penalty for each offense of
conviction. See Shelton, 400 F.3d at 1333 n.10. As a consequence, Jones’s
challenge to the reasonableness of his sentence is without merit.
For the foregoing reasons, we affirm Jones’s convictions and total sentence.
AFFIRMED.
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