United States v. Jeff Junior Holland , 503 F. App'x 737 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15949
Non-Argument Calendar
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D.C. Docket No. 2:10-cr-14069-JEM-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEFF JUNIOR HOLLAND,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 8, 2013)
Before CARNES, HULL and WILSON, Circuit Judges.
PER CURIAM:
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Jeffrey Junior Holland appeals his convictions and sentences for the
following offenses: (1) conspiracy to commit Hobbs Act robbery, in violation of 18
U.S.C. § 1951(a) (Count 1); (2) attempt to commit Hobbs Act robbery, in violation
of 18 U.S.C. §§ 1951(a) and 2 (Count 2); (3) conspiracy to possess with intent to
distribute five kilograms or more of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A)(ii), and 846 (Count 3); (4) attempt to possess with intent to
distribute five kilograms or more of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A)(ii), and 18 U.S.C. § 2 (Count 4); (5) conspiracy to carry
and possess a firearm in furtherance of a drug trafficking crime or crime of
violence, in violation of 18 U.S.C. §§ 924(c)(1)(A) and (o) (Count 5); (6) carrying
and possessing a firearm in furtherance of a drug trafficking crime or crime of
violence, in violation of 18 U.S.C. §§ 924(c)(1) and (2) (Count 6); and (7)
possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)
(Count 7).
First, Holland argues that the district court erred in denying his Federal
Rules of Civil Procedure Rule 29 motion for judgment of acquittal for insufficient
evidence of an interstate nexus to trigger the Hobbs Act, and insufficient evidence
that he possessed and intended to use a firearm. Second, he argues that the district
court erred by giving basic instructions on conspiracy and attempt in addition to
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instructions on the substantive elements of each charge. Third, he argues that the
district court abused its discretion during jury selection by limiting voir
dire questions. Lastly, Holland argues that his sentence was procedurally and
substantively unreasonable because the government engaged in sentencing-factor
manipulation and because there was an unreasonable disparity between Holland’s
sentence and the sentences his co-defendants received. After a thorough review of
the record and briefs, we affirm.
I. BACKGROUND
Holland, along with James George and Darius Gatlin, entered into an
agreement with undercover special agent Patrick Collins of the Bureau of Alcohol,
Tobacco and Firearms (ATF) to rob a shipment of cocaine from a stash house in
Broward County, Florida. Holland believed that there were armed guards at the
stash house and that each shipment to the house contained at least 15 kilograms of
cocaine. On July 23, 2010, Holland told Collins that he would bring an AK47
firearm to the robbery, assuring Collins that he had experience with that type of
robbery. On August 5, 2010, Holland, George and Gatlin met with Collins to tell
Collins about their plan for the robbery. Gatlin stated, “[W]e going to have to tie
them boys up,” and Holland agreed. Holland stated, “[T]his ain’t the first time
anyway,” and added that he had “beat a murder and a home invasion” in 2008.
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When Collins asked him if he had ever “done a house,” Holland said,
“[E]verything, man, that’s what we do.” Holland also talked about obtaining “a
little deuce deuce,” referring to a .22-caliber firearm. Holland, George, and Gatlin
discussed obtaining various types of firearms, including a .35-caliber pistol and a
pump action shotgun. Holland indicated that these weapons were necessary “just
in case we got to squeeze.” Holland also stated that he knew “big peoples in
Miami and Palm Beach” who could help move the cocaine they would get from the
robbery.
On August 17, 2010, Collins met with Holland, George, and Gatlin at a park
in Tamarac, Florida, and the three men got into Collins’s car and drove to the
“undercover warehouse.” Collins asked them to put their guns in the trunk of the
car, but George indicated that they had left a gun back at the park “where no one
can touch it.” When they arrived at the warehouse, Collins gave Gatlin and
Holland access to a rental car they were to use for the robbery. Collins remained at
the warehouse with George, while Holland and Gatlin drove back to the park.
When Holland and Gatlin returned to the warehouse, Collins gave a signal to the
arrest team. Among the items recovered at the warehouse were a .40-caliber High
Point pistol and eight rounds of .40-caliber ammunition. After the gun was
impounded, ATF performed a “gun trace” revealing that the gun originally was
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purchased by a man named David Deshomme, an acquaintance of Holland’s.
Deshomme testified that he owned a .40-caliber pistol, and that Holland had asked
to purchase it from him, but he had refused. Deshomme discovered that the gun
was missing when law enforcement officials inquired as to its whereabouts.
A federal grand jury returned an indictment charging Holland, George and
Gatlin with Counts 1 through 6. In addition, Holland was individually charged
with Count 7. George and Gatlin entered into plea agreements with the
government, pleading guilty to counts charged in a superseding information that
reduced the drug quantity. Holland proceeded to trial.
Prior to trial, Holland’s counsel submitted a list of proposed voir dire
questions containing 14 numbered topics. Relevant to this appeal, Holland’s
submission included questions regarding his status as a convicted felon, the
presumption of innocence, and the burden of proof. The court did not explicitly
adopt any of Holland’s proposed voir dire questions. Rather, at the beginning of
jury selection, the court informed the jury of the charges against Holland, and
asked whether any of the potential jurors had any reason to doubt their ability to be
impartial. The court explained the presumption of innocence and the government’s
burden of proof, and asked the prospective jurors whether they accepted those
principles. The court excused several jurors for cause, and allowed each side to
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exercise peremptory challenges. After the jury was sworn, the court gave
preliminary instructions to the jury.
At trial the government and Holland entered into a stipulation regarding
Holland’s prior felony conviction. The stipulation was read to the jury, and stated
that, prior to August 17, 2010, Holland had been convicted of a felony offense. At
the conclusion of the testimony, Holland made a motion for judgment of acquittal
under Rule 29 of the Federal Rules of Criminal Procedure. The court denied
Holland’s motion.
Before closing arguments, the court discussed jury instructions with
Holland’s counsel and provided counsel with an opportunity to object. The jury
instructions included specific instructions on conspiracy and attempt, which were
to be given before the instructions on the elements of each substantive offense.
Holland objected to providing the jury with separate instructions on conspiracy and
attempt, arguing that the instructions were duplicative because the language in the
substantive counts already included the elements of each crime, and that the jury
was likely to be confused about what the government was required to prove. The
district court disagreed, and stated that it would give the instruction over defense
counsel’s objection. The jury returned guilty verdicts on all counts.
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Holland moved for a new trial, asserting that the court’s general conspiracy
and attempt instructions violated his rights under the Fifth and Sixth Amendments,
because they omitted essential elements of the substantive offenses. Additionally,
Holland noted that, if the jury instructions were defective, the court would also be
required to grant a new trial as to Count 6, because a conviction on that count
required the jury to find that Holland committed at least one of the other crimes
charged in the indictment. The district court denied Holland’s motion for a new
trial.
The probation officer prepared a Presentence Investigation Report (PSI),
stating that Holland’s combined adjusted offense level was 34, the level applicable
to drug offenses involving at least 15 but less than 50 kilograms of cocaine,
pursuant to USSG §2D1.1(a)(5). With no further adjustments, Holland’s total
offense level was 34, and his criminal history category was IV. His advisory
Guideline range therefore, was 210 to 262 months’ imprisonment. The statutorily
mandated minimum term of imprisonment for Count 6 was 60 months, consecutive
to any other term of imprisonment.
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Holland filed a motion for a downward departure, arguing that because the
government both “invented the amount of drugs which it knew would directly
impact the Guideline calculations,” and “created the fiction of two armed guards”
in order to induce the use of a firearm, it had engaged in sentencing-factor
manipulation. At sentencing, Holland reiterated the arguments in his motion, and
further emphasized his lack of education, impoverished background, lack of
parental guidance, and other hardships in support of a downward departure. He
also noted that the court had varied downward in sentencing George and Gatlin.
Noting that the minimum mandatory sentence for Holland’s convictions was 15
years, with 10 years being the minimum mandatory sentence for the drug offense
involving more than 15 kilograms and 5 years for the § 924(c) charge, Holland
asked that the court impose a sentence of 15 years’ incarceration, or 180 months.
The court stated in imposing Holland’s sentence that it had considered “the
statements of all the parties, the presentence report which contains the advisory
Guidelines[,] and the statutory factors.” The court further found that a “sentence at
the low end of the advisory Guideline range is sufficiently punitive to deter the
defendant from further criminal conduct,” and stated that it would impose a
sentence “within and at the bottom of the advisory Guideline range.” The court
imposed a total sentence of 270 months’ imprisonment, which included the 60
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months’ mandatory consecutive sentence for Count 6. Based on their guilty pleas
to the two counts of the superseding indictment, George received a sentence of 120
months’ imprisonment and Gatlin received a sentence of 132 months’
imprisonment. Holland now appeals.
I. Analysis
a. Rule 29 Motion
Holland argues that there was insufficient evidence of an interstate nexus to
support his conviction for violating the Hobbs Act, because the conspiracy’s
objective was to steal drugs before they left Florida and crossed state lines.
Second, Holland argues that there was insufficient evidence to support the element
of possessing a firearm, in Counts 5, 6, and 7, because “there were three co-
defendants who were . . . equally likely to have handled the firearm.” Lastly,
Holland contends that because there was no evidence of intent to use a firearm,
acquittal on Counts 5 and 6 was required.
We review de novo the denial of a Rule 29 motion for judgment of acquittal
based on the sufficiency of the evidence, “viewing the evidence in the light most
favorable to the government and drawing all reasonable inferences and credibility
choices in favor of the jury’s verdict.” United States v. Tampas, 493 F.3d 1291,
1297–98 (11th Cir. 2007) (internal quotation marks omitted). Where, as in this
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case, the jury convicted the defendant, we will affirm the conviction “if a
reasonable juror could have concluded that the evidence established [the
defendant’s] guilt beyond a reasonable doubt.” Id. at 1298.
“The Hobbs Act prohibits robbery or extortion, and attempts or conspiracies
to commit robbery or extortion, that in any way or degree obstruct, delay, or affect
commerce or the movement of any article or commodity in commerce.” United
States v. Diaz, 248 F.3d 1065, 1084 (11th Cir. 2001) (alteration in original)
(internal quotation marks omitted). To establish a Hobbs Act conspiracy, “the
government must prove that: (1) two or more persons agreed to commit a robbery
or extortion encompassed within the Hobbs Act; (2) the defendant knew of the
conspiratorial goal; and (3) the defendant voluntarily participated in helping to
accomplish the goal.” Id. at 1084. When a defendant is charged with conspiracy
to violate the Hobbs Act, “the interstate nexus may be demonstrated by evidence of
potential impact on interstate commerce or by evidence of actual, de minimis
impact.” United States v. Le, 256 F.3d 1229, 1232 (11th Cir. 2001) (emphasis
omitted). “[P]ossession and sale of illegal drugs impacts upon interstate
commerce.” United States v. Bernard, 47 F.3d 1101, 1103 (11th Cir. 1995) (per
curiam). Finally, a conspiracy to obstruct drug trafficking establishes a sufficient
interstate nexus to satisfy the jurisdictional requirement of the Hobbs Act, even
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where the intended victims and drugs are fictitious. See United States v. Taylor,
480 F.3d 1025, 1027 (11th Cir. 2007).
Next, 18 U.S.C. § 922(g)(1) makes it a crime for a convicted felon to
possess any firearm that in any manner affects interstate commerce. The law
recognizes several kinds of possession, including actual possession, constructive
possession, and joint possession. United States v. Wright, 392 F.3d 1269, 1273
(11th Cir. 2004); see also United States v. Crawford, 906 F.2d 1531, 1536 (11th
Cir. 1990) (recognizing that “there may be joint possession of a firearm”).
“Constructive possession exists when the defendant exercises ownership,
dominion, or control over the item or has the power and intent to exercise
dominion or control.” United States v. Greer, 440 F.3d 1267, 1271 (11th Cir.
2006). Further, 18 U.S.C. § 924(c) makes it illegal for a person to possess a
firearm “in furtherance” of a crime of violence or drug trafficking crime. The “in
furtherance of” prong of the statute requires the government to prove that the
firearm “helped, furthered, promoted, or advanced” the drug trafficking or crime of
violence. See United States v. Timmons, 283 F.3d 1246, 1252 (11th Cir. 2002)
(addressing a firearm used in furtherance of a drug trafficking crime). Finally,
factors that may be considered when determining if possession was “in
furtherance” of the crime include the following: the type of activity that was being
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conducted, the accessibility of the firearm, the type of weapon, whether the
weapon was stolen, whether the possession of the firearm was legal, whether the
gun was loaded, the gun’s proximity to drugs or drug profits, and the time and
circumstances under which the gun was found. United States v. Suarez, 313 F.3d
1287, 1292 (11th Cir. 2002).
Here, sufficient evidence supports Holland’s convictions for conspiracy and
attempt to commit a Hobbs Act robbery. This case involved the planned robbery
of a cocaine stash house, inherently satisfying the requirement of an interstate
nexus. See Bernard, 47 F.3d at 1103 (holding that the sale and possession of
illegal drugs effects interstate commerce). In Taylor, when called upon to decide
whether the jurisdictional requirement of the Hobbs Act was satisfied in a reverse-
sting case based on a conspiracy to rob fictitious drug dealers, we began with the
premise that “[i]f the cocaine in this case actually existed, a sufficient interstate
nexus would exist to satisfy the jurisdictional requirement of the Hobbs Act.” 480
F.3d at 1027.
In this case, Holland, George and Gatlin were expressly told that Collins was
a drug courier for a drug trafficking operation between Puerto Rico and Florida.
Holland’s contention that the cocaine would have “lost its interstate character”
once it arrived at its destination in Florida is based upon dicta in a case that
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involved a stolen shipment of electronics goods, and is inapposite in the context of
narcotics trafficking. United States v. Petit, 841 F.2d 1546, 1551–52 (11th Cir.
1988).
The theory of constructive possession supports Holland’s firearms
convictions. Holland told Collins that he would bring an AK47, talked about
finding a .22-caliber firearm, and discussed obtaining other types of weapons “just
in case we got to squeeze.” Further, on the date of the attempted robbery, Holland
confirmed a previous statement made by George that they had left the gun back at
the park where they met Collins. Sufficient evidence supports this statement. The
day of the robbery, an aerial surveillance officer observed Holland and Gatlin
driving back to the park, while Collins waited in the warehouse with George.
Upon returning to the warehouse, the passenger in the car went to the bushes where
the .40-caliber pistol was later found. Finally, Deshomme testified that the .40-
caliber pistol disappeared after he refused to sell the gun to Holland. Based on
these facts, the jury reasonably inferred that Holland constructively possessed the
.40-caliber pistol found in the bush near the warehouse.
Similarly, applying the Suarez factors, sufficient evidence supports the
jury’s finding that Holland possessed the firearm in furtherance of a crime of
violence or drug trafficking crime. 313 F.3d at 1292. The evidence established
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that the gun was loaded, had been stolen from Deshomme who stated that Holland
had asked to buy the gun, and was hidden at a park, and ultimately placed in a bush
just outside the warehouse where the conspirators met before they attempted to rob
the stash house. Additionally, the conspirators discussed their plan for overcoming
the armed guards at the stash house, and referred to various types of firearms, with
Holland specifically mentioning the possibility of having to “squeeze” the trigger.
Thus, the jury reasonably inferred that Holland intended to use the firearm in
furtherance of the robbery.
b. Jury Instructions
Holland argues that the district court’s instructions on conspiracy and
attempt were deficient because they did not include the necessary elements for
conviction on the substantive charges, and appeared to the jury as alternative
instructions for finding Holland guilty. We review jury instructions de novo to
determine whether they misstate the law or mislead the jury to the prejudice of the
objecting party. United States v. Gomez, 580 F.3d 1229, 1233 (11th Cir. 2009).
Generally, district courts “have broad discretion in formulating jury instructions
provided that the charge as a whole accurately reflects the law and the facts.”
United States v. Moore, 253 F.3d 607, 609 (11th Cir. 2001) (internal quotation
marks omitted). On appeal, we consider “whether the jury charges, considered as a
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whole, sufficiently instructed the jury so that the jurors understood the issues and
were not misled.” United States v. Starke, 62 F.3d 1374, 1380 (11th Cir. 1995)
(internal quotation marks omitted). The jury is presumed to follow the court’s
instructions. See United States v. Brown, 983 F.2d 201, 202 (11th Cir. 1993).
Here, the district court first provided general instructions regarding burden
of proof, presumed innocence, types of evidence, and a limiting instruction
regarding evidence of other acts. Then the court read out the seven counts charged
against Holland and stated:
I will explain the law governing these offenses in a moment, but
please note that the defendant is not charged in Counts 1, 2, 3, 4, and
5 with committing a substantive offense. He is charged with
conspiring or attempting to commit those offenses.
The court then gave basic instructions regarding conspiracy and attempt. The court
next read the instructions pertinent to each count, specifying the elements and
definitions for each crime, and instructed the jury that they could reach a guilty
verdict “only if all of the following facts are proved beyond a reasonable doubt.”
The jury was also given the circumstances under which a defendant may be found
guilty of a crime committed by a co-conspirator to advance the conspiracy towards
its goals. Finally, the court instructed the jury on general definitions including
possession, knowingly and willfully, and the proper use of exhibits and tape
recordings.
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Holland has failed to demonstrate that the court’s instructions on conspiracy
and attempt misstated the law or misled the jury. Holland has offered nothing to
rebut the presumption that the jurors followed the court’s instructions that all of the
elements of each count had to be proved beyond a reasonable doubt. He has cited
no case that supports his contention that giving separate instructions on attempt
and conspiracy constitutes structural error, and independent research has revealed
no such case.
c. Voir Dire
Holland argues that the district court abused its discretion during jury
selection. We review a district court’s conduct of voir dire for abuse of discretion.
United States v. Vera, 701 F.2d 1349, 1355 (11th Cir. 1983). The district court’s
discretion includes whether to submit a party’s proposed questions to the venire.
United States v. Tegzes, 715 F.2d 505, 507 (11th Cir. 1983). “The purpose of voir
dire is to enable the defendant to evaluate the prospective jurors and select a fair
and impartial jury.” Vera, 701 F.2d at 1355. The proper inquiry is “whether the
district judge’s overall examination, coupled with his charge to the jury, affords a
party the protection sought.” Tegzes, 715 F.2d at 507 (internal quotation marks
omitted). A district court does not abuse its discretion unless it fails to reasonably
assure that prejudice would be discovered if present. Id.16
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In this case, the district court acted within its discretion in conducting voir
dire. While the court did not explicitly inquire as to bias toward convicted felons,
the court advised the prospective jurors of the charges that Holland faced, and
asked if they could be impartial. It explained the presumption of evidence and the
burden of proof, and asked the prospective jurors whether they accepted those
principles. After the jury was sworn, the court gave preliminary instructions to the
jury, including instructions on the presumption of evidence and the government’s
burden of proof. At the close of evidence, the court again addressed these topics in
specific jury instructions, and also gave a limiting instruction regarding the use of
other acts. The voir dire process in this case provided reasonable assurance that
any existing prejudices held by potential jurors were discovered, and, together with
the court’s instructions, adequately protected Holland’s right to an impartial jury.
d. Holland’s Sentence
Holland argues that the district court failed to recognize that, because the
government controlled both the amount of drugs in this case and the facts that
induced the defendants to use a firearm, the government engaged in sentencing-
factor manipulation. Holland also claims that his sentence was unreasonably
disparate from those of his co-defendants, who both received downward variances.
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We review the reasonableness of a sentence under a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591
(2007). “A district court abuses its discretion when it (1) fails to afford
consideration to relevant factors that were due significant weight, (2) gives
significant weight to an improper or irrelevant factor, or (3) commits a clear error
of judgment in considering the proper factors.” United States v. Irey, 612 F.3d
1160, 1189 (11th Cir. 2010) (en banc) (internal quotation marks omitted). “We
may set aside a sentence only if we determine, after giving a full measure of
deference to the sentencing judge, that the sentence imposed truly is
unreasonable.” Id. at 1191. In reviewing the reasonableness of a sentence, we
“must first ensure that the district court committed no significant procedural error.”
Gall, 552 U.S. at 51, 128 S. Ct. at 597. Once we determine that a sentence is
procedurally sound, we examine whether the sentence is substantively reasonable
in light of the totality of the circumstances. Id. The party challenging the sentence
bears the burden of establishing unreasonableness. United States v. Tome, 611
F.3d 1371, 1378 (11th Cir. 2010).
This court has never applied the defense of sentencing-factor manipulation
to a defendant’s sentence. United States v. Docampo, 573 F.3d 1091, 1097–98
(11th Cir. 2009). If sentencing-factor manipulation were recognized, however, the
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district court would filter the manipulation out of the sentencing calculation, and
thus, any mandatory minimums that only applied because of the manipulation
would no longer be applicable at sentencing. United States v. Ciszkowski, 492 F.3d
1264, 1270 (11th Cir. 2007). The standard for sentencing-factor manipulation is
high. The government must engage in extraordinary misconduct for the standard
to be satisfied. Id. at 1271. “The fact that the government’s fictitious reverse sting
operation involved a large quantity of drugs does not amount to the type of
manipulative governmental conduct warranting a downward departure in
sentencing.” United States v. Sanchez, 138 F.3d 1410, 1414 (11th Cir. 1998).
Here, Holland’s argument that the government engaged in sentencing-factor
manipulation by inventing the amount of cocaine is foreclosed by this court’s
holding in Sanchez. Id. Moreover, Collins’s creation of an armed guard scenario
does not rise to the level of extraordinary misconduct necessary to show
sentencing-factor manipulation. Holland’s argument that he was not willing and
predisposed to commit the crime proposed by Collins is simply not compatible
with the facts of this case, including Holland discussing the necessity of using a
firearm, stating that he would bring an AK47 firearm to the robbery, and bragging
that he had “beat a murder and a home invasion.”
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With regard to Holland’s sentencing disparity claim, the district court is
required to “avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6).
However, a sentencing disparity is not “unwarranted” if the individuals being
compared are not similarly situated. See United States v. Spoerke, 568 F.3d 1236,
1252 (11th Cir. 2009). Holland has not shown that there was an unreasonable
sentencing disparity as compared to George and Gatlin, because they were not
similarly situated for the purposes of 18 U.S.C. § 3553(a)(6). Holland and his co-
defendants, who pleaded guilty, were sentenced based on different charged
conduct and their sentences do not reflect an unwarranted disparity. Spoerke, 568
F.3d at 1252.
Finally, Holland’s argument that the district court treated the sentencing
Guidelines as presumptively reasonable was raised for the first time in his reply
brief, and therefore we need not address it. See United States v. Oakley, 744 F.2d
1553, 1556 (11th Cir. 1984) (per curiam) (stating that arguments raised for the first
time in a reply brief are not properly before the reviewing court). Nevertheless,
there is nothing in the sentencing transcript that suggests that the court treated the
Guidelines as presumptively reasonable.
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In sum, Holland has not shown that his sentence was unreasonable based on
sentencing-factor manipulation, or that there was an unreasonable sentencing
disparity.
Upon review of the record and consideration of the parties’ briefs, we
affirm.
AFFIRMED.
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