United States v. Mayico Alphonso Golden ( 2008 )


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    IN THE UNITED STATES COURT OF APPEALS
    FILED
    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
    ________________________ ELEVENTH CIRCUIT
    JUNE 30, 2008
    No. 07-12107                       THOMAS K. KAHN
    ________________________                     CLERK
    D. C. Docket No. 06-00256-CR-4
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    MAYICO ALPHONSO GOLDEN,
    a.k.a. Majico Golden,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Georgia
    _________________________
    (June 30, 2008)
    Before BIRCH and FAY, Circuit Judges, and HINKLE,* District Judge.
    PER CURIAM:
    *
    Honorable Robert L. Hinkle, United States District Chief Judge for the Northern District
    of Florida, sitting by designation.
    Mayico Alphonso Golden appeals his conviction and 90-month sentence for
    possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).
    Golden argues that (1) his plea was either conditional or not knowing and
    voluntary and that he ought to be able to appeal the court’s ruling as to his
    entrapment-by-estoppel defense; (2) the court erred in considering the credibility
    of his testimony regarding his entrapment-by-estoppel defense at sentencing; and
    (3) the court further erred in enhancing his sentence based on obstruction of justice
    and failure to accept responsibility. We AFFIRM.
    I. BACKGROUND
    A federal grand jury charged that Golden, a convicted felon, knowingly
    possessed a firearm on 27 December 2005. In the course of the case, the
    government filed a motion in limine, seeking to prevent Golden from arguing that
    the police acted improperly toward him. Golden opposed the government’s
    request, to the extent that it would prevent him from demonstrating that his state
    probation officer had authorized him to sell the gun in question in order to pay
    down his outstanding state fines,1 and he requested a jury charge on entrapment-
    by-estoppel. Partially granting the government’s motion, the district court
    1
    At the time Golden was found in possession of the firearm, he was on probation for driving
    with a suspended license, no proof of insurance, operating a vehicle with an improper tag, and loud
    music, for which he was required to pay fines.
    2
    determined that Golden’s argument “amount[ed] to an irrelevant ‘mistake of law’
    defense,” and held that evidence of the state probation officer’s statements to
    Golden was inadmissable under Federal Rule of Evidence 402, because it was not
    relevant. R1-39 at 2.
    Based on the district court’s ruling, and under the assumption that the court
    also would deny his requested jury instruction on entrapment by estoppel, Golden
    entered into a plea agreement with the government. The plea agreement did not
    provide that he could appeal the district court’s order denying the entrapment-by-
    estoppel defense. During the plea hearing, discussion of appeal was limited to the
    following. In the course of explaining Golden’s rights prior to a plea, the district
    court told Golden that many prisoners receive the assistance of a jail house lawyer
    in filing “motion[s] for an appeal,” to which Golden replied “I’m not going to
    follow with that.” R2 at 25. The court also told Golden that his chances of
    winning an appeal were not very good, and Golden replied, “Yes, sir. I wasn’t even
    going to waste your time with nothing like that, sir.” 
    Id. The district
    court,
    nevertheless, informed Golden that he did have the right to an appeal.
    At the same hearing, Golden testified to the following. On 27 December
    2005, he received a call from his state probation officer, who told him to bring in
    $500, or she would have him arrested. Later that day, Golden and his mother were
    3
    cleaning their house, and they discovered a rifle in a closet. Golden called his
    probation officer and asked her to come pick it up, but she told him to sell the rifle
    and use the money towards his outstanding fines. Golden took the rifle to a
    pawnshop, where he informed the pawnshop employee that he was a convicted
    felon. The employee told Golden that the pawnshop could not buy the rifle unless
    it obtained permission from Golden’s probation officer. Golden called his
    probation officer, who again gave him permission to sell the gun. He sold the rifle
    and took the $25 to his probation officer. Based upon Golden’s testimony, the
    district court found that there was a factual basis for the plea and accepted it.
    Following Golden’s guilty plea, the district court entered a written order,
    clarifying its earlier ruling on the government’s motion in limine. Noting that
    entrapment by estoppel is an exception to the general rule that ignorance of the law
    is no defense, it nevertheless found that the exception was not available to Golden
    under Eleventh Circuit precedent, because it was his state probation officer, rather
    than a federal agent, who had erroneously told him to sell the gun.
    Notwithstanding this ruling, the court stated that, “[i]f Golden’s allegations are true
    . . . it hardly seems correct to charge him with a crime,” as “state probation officers
    act as quasi-liaisons to the federal criminal system.” R1-42.
    4
    The presentence investigation report (“PSI”) calculated Golden’s total
    adjusted offense level as 22, which included a two-level enhancement, pursuant to
    U.S.S.G. § 3C1.1 (2006), for obstruction of justice, based on the probation
    officer’s conclusion that Golden had perjured himself during the plea hearing when
    he testified that his state probation officer had given him permission to sell the gun.
    For the same reason, the probation officer concluded that Golden was not entitled
    to an acceptance-of-responsibility reduction under U.S.S.G. § 3E1.1. Golden
    objected to both of these aspects of the calculation.
    At the sentencing hearing, Golden first argued that it was a due process
    violation for the district court to hear evidence on the issue of whether his state
    probation officer had given him permission to sell the gun after the court had ruled
    that the evidence was inadmissable during the guilt phase. The court, however,
    heard the evidence.
    Golden’s state probation officer testified that she had not called Golden on
    the morning of 27 December 2005. She also stated that Golden had not called her
    at any time during that day, and that she had never given him permission to sell a
    gun. The officer did confirm that Golden made a $25 payment that afternoon.
    Finally, she confirmed that it was her responsibility to report probationers who
    violated the law, whether state or federal. The pawnshop employee testified that he
    5
    did not remember the transaction with Golden, but that he would have remembered
    if someone had come in with a firearm and stated that he was a convicted felon,
    since that would have been such an unusual occurrence.
    Golden testified, repeating his previous account of the events of 27
    December. He added that, while he was in the pawnshop, he had actually made
    three calls to his probation officer: (1) the first call went to the probation officer’s
    answering machine; (2) the second call was dropped; and (3) during the third call,
    he talked to the officer, who gave him permission to sell the gun. He further
    testified that, as he was leaving the pawnshop, he had called his probation officer
    once again to let her know that he was bringing the $25. Golden introduced the
    phone records for his cell phone, which showed that he had called his probation
    officer’s office several times on 27 December 2005, around the times he testified
    that he had called her.
    The district court found the testimony of the pawnshop employee and the
    probation officer more credible than Golden’s, and it ruled that Golden wilfully
    made materially false statements to the court. More specifically, the court stated
    that it found the pawnshop employee to be “very believable, very credible” and
    Golden to be very “devious” and “glib.” R3 at 128, 129. The district court then
    sentenced Golden to 90 months in prison and a $2,000 fine.
    6
    II. DISCUSSION
    A.    Entrapment-by-estoppel Defense
    On appeal, Golden first argues that the district court erred in denying his
    request to charge on entrapment by estoppel, despite his having entered an
    unconditional guilty plea. More specifically, he argues that, based on his Rule 11
    plea colloquy, he reasonably believed that he had preserved the entrapment-by-
    estoppel issue for appeal, and thus, pursuant to United States v. Pierre, 
    120 F.3d 1153
    (11th Cir. 1997), his plea had not been knowing and voluntary.
    Federal Rule of Criminal Procedure 11(a)(2) states: “With the consent of the
    court and the government, a defendant may enter a conditional plea of guilty or
    nolo contendere, reserving in writing the right to have an appellate court review an
    adverse determination of a specified pretrial motion.” Fed. R. Crim. P. 11(a)(2).
    We have held that Rule 11(a)(2) requires express consent from the government
    before a defendant can conditionally plead guilty. 
    Pierre, 120 F.3d at 1156
    .
    Silence by the government, following a district court’s statement, during a Rule 11
    hearing, that the defendant has the right to appeal, is insufficient to preserve the
    issue. 
    Id. However, if
    a defendant enters a guilty plea on the reasonable, but
    mistaken, belief that he has preserved an issue for appeal because of the district
    court’s statements, then the defendant’s “plea was, as a matter of law, not knowing
    7
    and voluntary,” and the defendant’s conviction must be vacated and remanded for
    him to plead anew. 
    Id. at 1156.
    In Pierre, the issue was whether the defendant had preserved a challenge
    based on speedy trial issues. Pierre’s plea colloquy, “unequivocally indicate[d]
    that Pierre intended to plead guilty on the condition that – and only after having
    been assured by the district court judge that – he had preserved the speedy trial
    issues for appeal.” 
    Id. at 1155.
    Additionally, Pierre’s counsel also explicitly tried
    to preserve the issue during the plea hearing. 
    Id. Golden’s plea
    colloquy, on the other hand, contains no express
    representations, by the district court, Golden, or his counsel, that Golden, in
    entering his guilty plea, intended to or was preserving the entrapment-by-estoppel
    issue for appeal. Instead, Golden and his counsel stated only that Golden was
    pleading guilty because of the district court’s denial of his request to charge, and
    that Golden disagreed with the court’s ruling. The district court then informed
    Golden, “I don’t know whether you have other defenses. But if you plead guilty,
    you are giving up those defenses.” R2-46 at 24. When the district court raised the
    prospect of an appeal, Golden said, “I’m not going to follow with that” and “I
    wasn’t even going to waste your time with nothing like that, sir.” 
    Id. at 25.
    Thus,
    Golden, if anything, indicated that he was not going to appeal. Further, the district
    8
    court never affirmatively advised Golden that he was preserving his entrapment-
    by-estoppel issue.
    In United States v. Lejarde-Rada, we similarly distinguished Pierre,
    observing that, “[Pierre] involved a defendant who not only reasonably believed
    but was also affirmatively misinformed by the court he would be allowed to appeal
    an issue that his guilty plea waived. By contrast, Lejarde-Rada was not
    misinformed of anything, and there is no indication that he reasonably believed
    that he could appeal the court’s refusal to depart downward.” 
    319 F.3d 1288
    , 1291
    (11th Cir. 2003) (per curiam) (citation omitted). As in Lejarde-Rada, Golden’s
    case is materially different from Pierre, and Golden’s reliance thereupon is to no
    avail. Golden knowingly, voluntarily, and effectively waived his right to appeal
    the district court’s ruling as to an entrapment-by-estoppel defense.2
    B.     Due Process
    Golden next argues that the district court violated his due process rights by
    denying him the right to make an entrapment-by-estoppel defense, but allowing the
    government to present evidence, during sentencing, that he had lied to the court
    2
    In any event, as the district court properly noted, Golden’s entrapment-by-estoppel issue
    lacks merit under our binding precedent. See United States v. Funches, 
    135 F.3d 1405
    , 1407 (11th
    Cir. 1998); United States v. Bruscantini, 
    761 F.2d 640
    , 641-42 (11th Cir. 1985), superseded by
    statute on other grounds, see United States v. Fernandez, 
    234 F.3d 1345
    , 1347 n.2 (11th Cir. 2000)
    (per curiam).
    9
    regarding the facts that he claimed established entrapment by estoppel. Golden
    maintains that, if the evidence on this issue was legally irrelevant during the guilt
    phase of his proceedings, it also was irrelevant during sentencing. Additionally,
    Golden asserts, based on United States v. Thompson, 
    25 F.3d 1558
    (11th Cir.
    1994), that a jury should make the findings of fact regarding an entrapment-by-
    estoppel defense, not the district court.
    We review constitutional challenges – such as a due process argument – de
    novo. United States v. O’Keefe, 
    461 F.3d 1338
    , 1346 (11th Cir. 2006), cert.
    denied, __ U.S. __, 
    127 S. Ct. 1308
    (2007). In the Eleventh Circuit, an
    entrapment-by-estoppel defense is only available when the defendant has relied
    upon a federal official’s misstatement of the law. United States v. Funches, 
    135 F.3d 1405
    , 1407 (11th Cir. 1998). However, a district court may “consider any
    information . . . regardless of its admissibility at trial, in determining whether
    factors exist that would enhance a defendant’s sentence, provided that the evidence
    has sufficient indicia of reliability, the court makes explicit findings of fact as to
    credibility, and the defendant has an opportunity to rebut the evidence.” United
    States v. Baker, 
    432 F.3d 1189
    , 1253 (11th Cir. 2005). Additionally, according to
    the Sentencing Guidelines, a court may consider any relevant information “without
    regard to its admissibility under the rules of evidence” when resolving disputed
    10
    facts important to a sentencing determination. U.S.S.G. § 6A1.3(a), p.s. The
    Guidelines allow for a two-level enhancement if the defendant willfully obstructs
    or impedes justice. U.S.S.G. § 3C1.1. An obstruction of justice enhancement is
    appropriate when the defendant perjures himself. United States v. Singh, 
    291 F.3d 756
    , 762-63 (11th Cir. 2002).
    On this point, Golden conflates two separate issues – (1) whether he could
    raise an entrapment-by-estoppel defense, and (2) whether he perjured himself
    during the Rule 11 hearing – because the evidence is the same for both. As noted,
    the district court correctly ruled that the entrapment-by-estoppel defense was
    unavailable to Golden, thus making the issue of whether or not his state probation
    officer gave him permission to sell the gun irrelevant during the conviction phase.
    See 
    Funches, 135 F.3d at 1407
    . This did not, however, make the evidence
    irrelevant during the sentencing phase because there was a different issue under
    consideration: whether Golden had committed perjury. See 
    Baker, 432 F.3d at 1253
    . This was a relevant issue for the district court to consider during sentencing
    because, if Golden had lied, an obstruction of justice enhancement might be
    appropriate. See 
    Baker, 432 F.3d at 1253
    , 
    Singh, 291 F.3d at 763
    . Additionally, at
    the sentencing hearing, the district court made explicit findings that the probation
    officer and pawnshop employee were more credible than Golden. Further, Golden
    11
    had the opportunity to testify on his own behalf, to introduce phone records to
    support his claims, and to cross-examine the probation officer and pawnshop
    employee. See 
    Baker, 432 F.3d at 1253
    ; R3 at 15-38, 44-52, 55-71, 130.
    Accordingly, we see no substantive or procedural due process problem.
    Finally, Thompson does not support Golden’s due process claim. In
    Thompson, the defendant sought to raise an entrapment-by-estoppel defense,
    claiming that federal agents gave him immunity to possess a 
    firearm. 25 F.3d at 1560-62
    . Following a motion by the government to prevent Thompson from
    raising the defense, the district court heard Thompson’s testimony in camera but
    then ruled that he could not raise the defense because entrapment by estoppel was
    not a permissible defense in § 922 cases. 
    Id. at 1563.
    We concluded that, if
    proffered testimony as to an entrapment-by-estoppel defense has any relevance to
    such a defense, it is for the jury to hear and weigh the evidence – in that case, to
    decide whether the government’s grant of immunity actually included allowing the
    convicted felon to possess a firearm. 
    Id. at 1564,
    1565.
    First, unlike in Thompson, even if Golden’s testimony were all true, because
    his probation officer was a state rather than a federal agent, his testimony was
    irrelevant to an entrapment-by-estoppel defense. Second, the issue here is whether
    the district court could determine Golden’s credibility in deciding if an obstruction-
    12
    of-justice enhancement was appropriate. A district court may make credibility
    determinations as they relate to sentencing issues. See 
    Baker, 432 F.3d at 1253
    .
    Accordingly, we conclude that the district court did not violate Golden’s due
    process rights in this respect either.
    C.    Obstruction of Justice and Acceptance of Responsibility
    Golden next argues that, even if it was not a due process violation for the
    district court to consider evidence during sentencing regarding whether or not he
    had permission to sell the gun, the evidence was not material to any sentencing
    issue and should not have been considered as grounds for finding obstruction of
    justice or denying him a reduction for acceptance of responsibility. 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). The
    district court’s determination regarding the propriety of an obstruction-of-justice
    enhancement or an acceptance-of-responsibility reduction is a question of fact
    reviewed for clear error. 
    Singh, 291 F.3d at 763
    . Additionally, we defer to a
    district court’s credibility finding based on its having had the opportunity to view
    the witnesses as they testified. See 
    id. at 763-64.
    The Guidelines provide for a two-level enhancement when a defendant
    willfully obstructs or impedes justice with respect to sentencing, and the
    13
    obstructive conduct relates to an offense for which the defendant was convicted.
    U.S.S.G. § 3C1.1. The comments to § 3C1.1 state that committing perjury and
    providing materially false statements to a judge are grounds for applying the
    enhancement. 
    Id. comment. (n.4(b),
    (f)). Under § 3C1.1, “the threshold for
    materiality is ‘conspicuously low.’” United States v. Massey, 
    443 F.3d 814
    , 821
    (11th Cir. 2006) (citation omitted). On the other hand, as a matter of law, a
    defendant’s post-conviction and pre-sentence assertions of innocence “cannot be
    material to sentencing if the assertions’ truth [would] require[] the jury’s verdict to
    be in error.” United States v. Gardiner, 
    955 F.2d 1492
    , 1499-1500 (11th Cir.
    1992). Finally, as a general rule, if the district court finds that the defendant
    obstructed justice, then a two-level decrease under § 3E1.1 for acceptance of
    responsibility is unavailable. U.S.S.G. § 3E1.1 comment. (n. 4); 
    Singh, 291 F.3d at 765
    .
    The district court first concluded that Golden was not credible. By
    extension, Golden committed perjury by falsely testifying that he had permission
    from his probation officer to sell the gun. Golden’s false statements were material
    because, if the district court had believed him, it likely would have imposed a
    much shorter sentence, given the court’s order following the Rule 11 hearing, in
    which it stated that it did not seem correct even to charge Golden if he were telling
    14
    the truth. This is sufficient to satisfy the low threshold for materiality. See
    
    Massey, 443 F.3d at 821
    . Because Golden’s probation officer was a state rather
    than a federal agent, Golden’s assertions, even if true, would not have required a
    different verdict, and thus are not disqualified on that ground. See 
    Gardiner, 955 F.2d at 1499-1500
    . The district court, therefore, did not clearly err in applying a
    two-level obstruction of justice enhancement. Likewise the district court did not
    clearly err in not applying a two-level, acceptance-of-responsibility reduction since
    Golden obstructed justice. See 
    Singh, 291 F.3d at 765
    .
    III. CONCLUSION
    Golden appeals his conviction and sentence for possession of a firearm by a
    convicted felon. First, because Golden did not enter a conditional guilty plea, and
    we find that his plea was knowing and voluntary, he has waived the right to raise
    the entrapment-by-estoppel defense on appeal. Accordingly, we AFFIRM his
    conviction. Second, the district court did not err in considering Golden’s
    credibility as to whether his state probation officer had given him permission to
    sell the gun, in applying an enhancement for obstruction of justice, or in refusing to
    reduce for acceptance of responsibility because, regardless of the relevancy of this
    evidence as to his guilt, whether Golden lied was material to sentencing.
    Accordingly, we also AFFIRM his sentence.
    15