United States v. Troy Hollander Craddock , 292 F. App'x 838 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT 11, 2008
No. 08-10574 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-14044-CR-JEM-DLG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TROY HOLLANDER CRADDOCK,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 11, 2008)
Before BIRCH, DUBINA and WILSON, Circuit Judges.
PER CURIAM:
Troy Hollander Craddock appeals his 101-month total sentence for
conspiracy to interfere with interstate commerce by violence and robbery, in
violation of 18 U.S.C. § 1951(a), and possession and use of a firearm during and in
relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2.
Specifically, the indictment alleged that Craddock and a co-defendant, Omar
Robinson, conspired to rob a restaurant in Port St. Lucie, Florida. Craddock pled
guilty to the charges pursuant to a written plea agreement.
On appeal, Craddock argues that the district court erred in enhancing his
offense level two points, under U.S.S.G. § 3B1.1(c), because he was not an
organizer or manager in the charged conspiracy. Specifically, he argues that the
enhancement was not applicable to his possible recruitment or management of a
female restaurant employee, Lynn Watson, because she was not a participant in the
conspiracy. He also argues that the court made no finding that he deserved the
enhancement based on his role regarding his co-defendant Robinson, and this
Court cannot make that finding in the first instance.
“We review the district court’s application of the sentencing guidelines de
novo and its findings of fact for clear error.” United States v. Baker, 432 F.3d
1189, 1253 (11th Cir. 2005). “A factual finding is clearly erroneous when
although there is evidence to support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mistake has been committed.”
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United States v. Robertson, 493 F.3d 1322, 1330 (11th Cir. 2007), cert. denied, 128
S. Ct. 1295 (2008) (internal quotation marks omitted). The government bears the
burden of establishing a disputed fact at sentencing by a preponderance of the
evidence. See United States v. Pope, 461 F.3d 1331, 1335 (11th Cir. 2006).
The district court should make explicit findings of fact at sentencing to
facilitate judicial review and avoid unnecessary remands. United States v.
Villarino, 930 F.2d 1527, 1528 (11th Cir. 1991); see also Fed. R. Crim. P.
32(i)(3)(B). A district court’s failure to resolve factual disputes may require us to
vacate a defendant’s sentence and remand the case to the district court for explicit
factual findings. See United States v. Caraza, 843 F.2d 432, 438 (11th Cir. 1988)
(per curiam). However, the district court’s failure to make specific findings of fact
will not preclude meaningful appellate review where evidence clearly supported
the court’s determination. See Villarino, 930 F.2d at 1529. More specifically, we
have stated:
In making the ultimate determination of the defendant’s role in the
offense, the sentencing judge has no duty to make any specific
subsidiary factual findings. So long as the district court’s decision is
supported by the record and the court clearly resolves any disputed
factual issues, a simple statement of the district court’s conclusion is
sufficient.
United States v. De Varon, 175 F.3d 930, 939 (11th Cir. 1999) (en banc) (internal
citation omitted).
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Section 3B1.1(c) of the Sentencing Guidelines provides for a two-point
offense level increase for a defendant who was “an organizer, leader, manager, or
supervisor in any criminal activity” that involved fewer than five participants and
was not otherwise extensive. U.S.S.G. § 3B1.1(c). To qualify for this
enhancement, “the defendant must have been the organizer, leader, manager, or
supervisor of one or more other participants.” U.S.S.G. § 3B1.1, cmt. n.2; see also
United States v. Glover, 179 F.3d 1300, 1302 (11th Cir. 1999) (stating that, for the
§ 3B1.1(c) enhancement to apply, the defendant must have “assert[ed] control or
influence over at least . . . one participant”). “A ‘participant’ is a person who is
criminally responsible for the commission of the offense, but need not have been
convicted.” U.S.S.G. § 3B1.1, comment. (n.1). Accordingly, a police informant is
not a participant. Id. However, up until a person who is criminally responsible
becomes a police informant, she may be considered a participant. See id.; see also
United States v. Griffin, 945 F.2d 378, 384 n.6 (11th Cir. 1991).
To be held criminally responsible as a co-conspirator, a person must have
formed an agreement with one or more persons, the object of which was to carry
out an unlawful act or a lawful act by unlawful means. United States v. Arias-
Izquierdo, 449 F.3d 1168, 1182 (11th Cir. 2006). The alleged conspirator must
have known of the purpose of the agreement and must have knowingly and
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voluntarily entered into the agreement. See United States v. Simpson, 228 F.3d
1294, 1298 (11th Cir. 2000).
Initially, we note that the district court only made a general finding that the
two-point offense level enhancement, under § 3B1.1(c), applied to Craddock.
Although the record reveals two possible participants in the robbery conspiracy—
Watson and Robinson the district court did not explicitly state who Craddock
managed or supervised.
To the extent that the district court applied the enhancement based on
Craddock’s role in the offense vis-a-vis Watson, it erred. Watson could not have
qualified as a participant in the offense during the time she acted as a police
informant. Moreover, no evidence indicated that she was criminally responsible
for the robbery conspiracy prior to becoming a police informant. Although Watson
listened to Craddock’s plans to rob the restaurant and he attempted to recruit her,
no evidence showed that she knowingly and voluntarily agreed with him to carry
out the robbery before she went to the police. Therefore, the § 3B1.1 aggravating
role enhancement was not applicable based on Craddock’s interaction with
Watson.
To the extent that the enhancement was based on Craddock’s role as a
manager or organizer vis-a-vis Robinson, some evidence in the record supported
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the application of the enhancement. Specifically, both the presentence
investigation report (“PSI”) and facts from the change-of-plea hearing indicated
that Craddock recruited Robinson, instructed him on what to wear, informed him
about the recruitment of a restaurant employee to assist, drove him to the restaurant
to commit the robbery on April 25, 2007, and gave him the gloves, sunglasses, and
firearm for the robbery.
However, Craddock objected generally that he and Robinson were equally
culpable, and he specifically objected that he did not recruit Robinson, instruct him
on anything, or provide him with a firearm. Because the district court never made
any findings regarding these disputed facts, it is unclear whether it viewed the
undisputed facts—that Craddock drove Robinson to the restaurant on April 25 and
gave him gloves and sunglasses—as sufficient to warrant application of the
aggravating role enhancement.
Moreover, the record indicates that the district court’s finding on the
enhancement, while not explicit, was made only in regards to Craddock’s
relationship with Watson. The parties and the court were focused on Craddock’s
possible management or supervision of Watson immediately before the district
court made its finding on the enhancement. The context of the sentencing hearing
indicates that the district court’s references to the “great deal of planning involved”
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and “great deal of conversations,” in finding that the enhancement applied, were
references to Craddock’s planning and conversations with Watson.
Thus, the district court failed to make findings regarding relevant facts
disputed by Craddock or indicate that its general finding on the § 3B1.1
aggravating role enhancement applied to him due to his management or
organization vis-a-vis Robinson. In light of these circumstances, the district
court’s findings are inadequate for appellate review. Accordingly, we vacate
Craddock’s sentence and remand for the district court to re-consider the
applicability of the aggravating role enhancement and make explicit factual
findings if it chooses to reimpose the enhancement.
VACATED AND REMANDED.
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