United States v. Terry Dykes , 244 F. App'x 296 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 6, 2007
No. 06-14353 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-80173-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRY DYKES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 6, 2007)
Before TJOFLAT, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Appellant Terry Dykes appeals his total 24-month sentence for (1) failure to
file a demolition/renovation notice, in violation of 42 U.S.C. § 7413(c)(2)(B); and
(2) failure to comply with the National Emission Standards for Hazardous Air
Pollutants (“NESHAP”) work practice standards, in violation of 42 U.S.C.
§ 7413(c)(1). In November 2000, Mark Schwartz, on behalf of Schwartz
Construction Management, hired Dykes and his crew, which included Chris Magno
and Greg Hill, to handle selective interior demolition of the former Northwood
Hotel (“Northwood”) in West Palm Beach, Florida. During the project, Dykes
discovered that there was asbestos, but failed to file a notice required by the
Federal Clean Air Act (“CAA”), and had his crew remove a hot water tank,
covered with asbestos, and cut up copper pipes in the building, which were covered
in “regulated asbestos material” (“RACM”), while not being certified or licensed to
conduct abatement of asbestos. At Dykes’s plea hearing, the district court
indicated that it was willing to accept Alford 1 pleas, but then refused to accept
Dykes’s plea after he would not admit to criminal knowledge.
On appeal, Dykes first argues that the district court erred because it was
confused as to the legal prerequisites for an Alford plea. He claims that, after the
government presented a sufficient factual basis, the district court appeared to forget
that it was an Alford plea, as it did not allow the plea to proceed when Dykes
1
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970).
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would not admit to criminal knowledge. Second, he contends that the district court
abused its discretion because it was arbitrary for it to reject his plea, when only a
day earlier, it accepted an Alford plea from a codefendant, who had similarly
refused to admit criminal knowledge. Further, Dykes argues that he was
prejudiced by the district court’s rejection of his plea because his allegedly
untruthful trial testimony was used as grounds for an obstruction-of-justice
enhancement and to deny him a reduction for acceptance of responsibility, and the
district court repeatedly cited the trial testimony of Hill as grounds that the offense
was so serious and callous as to warrant a sentence in the middle of the guideline
range.
Ordinarily, we review a district court’s decision to reject a guilty plea for an
abuse of discretion. United States v. Gomez-Gomez, 822 F.2d 1008, 1010 (11th
Cir. 1987). However, because Dykes did not object to the district court’s rejection
of the plea below based on its confusion of the legal prerequisites of an Alford plea,
we review this issue for plain error. See United States v. Clark, 274 F.3d 1325,
1326 (11th Cir. 2001); see also United States v. Buonocore, 416 F.3d 1124, 1128-
29 (10th Cir. 2005). Under plain error review, the error must be plain, affect
substantial rights, and seriously implicate the fairness, integrity, or public
reputation of judicial proceedings. Clark, 274 F.3d at 1326. To show that an error
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affected substantial rights, a defendant must show that the error “affected the
outcome of the district court proceedings.” United States v. Heath, 419 F.3d 1312,
1315 (11th Cir. 2005).
When a defendant attempts to plead guilty, while protesting his innocence, a
trial judge may accept the plea if the defendant clearly indicates his desire to plead
guilty, and a strong factual basis for the plea exists. Alford, 400 U.S. at 31-32, 38,
91 S. Ct. at 164-65, 167-68. A defendant, however, has no absolute right under the
Constitution or Fed.R.Crim.P. 11 to have his guilty plea accepted by the court.
Gomez-Gomez, 822 F.2d at 1010. We have found that, “when a defendant casts
doubts upon the validity of his guilty plea by protesting his innocence or by
making exculpatory statements,” the district court may resolve such doubts against
the plea. Id. at 1011.
The record demonstrates that the district court imposed Dykes’s sentence
based on trial facts that also had been elicited in the government’s factual proffer
during his plea hearing. Accordingly, reviewed for plain error, Dykes cannot show
that the district court’s rejection of his Alford plea affected the outcome of his case.
Next, Dykes argues that the district erred by applying an obstruction-of-
justice enhancement based on its finding that he committed perjury. He contends
that this was not a case where numerous witnesses contradicted him regarding facts
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of which he could not have been mistaken, or where his testimony was
transparently false, as evidenced by the fact that the jury announced that it was
hung, had to have an Allen2 charge, and deliberated for two and one-half days to
answer the simple question of whether he knew that the insulation was asbestos.
Further, he contends that, to find that a defendant perjured himself, there must be
“wilfulness,” and, here, he did not wilfully intend to provide any testimony, let
alone, false testimony, as he had attempted to enter an Alford plea.
For an obstruction-of-justice enhancement, we review the district court’s
findings of fact for clear error and the application of the guidelines to those facts de
novo. United States v. Massey, 443 F.3d 814, 818 (11th Cir. 2006). We accord
great deference to the district court’s credibility determinations. United States v.
Gregg, 179 F.3d 1312, 1316 (11th Cir.1999).
The guidelines provide for a two-level increase in the offense level:
[i]f (A) the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice during the course of
the investigation, prosecution, or sentencing of the instant offense of
conviction, and (B) the obstructive conduct related to (i) the
defendant’s offense of conviction and any relevant conduct; or (ii) a
closely related offense.
U.S.S.G. § 3C1.1. (2005). Perjury, which is among the examples of conduct
warranting this enhancement, U.S.S.G. § 3C1.1, comment. (n.4(b)), “has been
2
Allen v. United States, 164 U.S. 492, 17 S. Ct. 154 (1896).
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defined by the United States Supreme Court as ‘false testimony concerning a
material matter with the willful intent to provide false testimony, rather than as a
result of confusion, mistake, or faulty memory,’” United States v. Singh, 291 F.3d
756, 763 (11th Cir. 2002) (quoting United States v. Dunnigan, 507 U.S. 87, 94,
113 S. Ct. 1111, 1116 (1993)). We can affirm if “the district court makes a general
finding of obstruction of justice that encompasses all of the factual predicates of
perjury.” United States v. Vallejo, 297 F.3d 1154, 1168 (11th Cir. 2002) (citation
and quotation marks omitted).
Because the record demonstrates that several witnesses at trial contradicted
Dykes’s material testimony, we conclude that the district court did not err by
applying an obstruction-of-justice enhancement.
Furthermore, Dykes argues that the court erroneously applied a two-level
“supervisor” enhancement. First, he contends that, because the jury had to find, as
an element of the offense, that he was an “operator” (defined as “supervisor”),
imposing a supervisor enhancement upon him constituted impermissible double-
counting. Further, he contends that, because Magno and Hill, those he supervised,
were not owners/operators of the work site, they were not criminally liable for the
offenses of which he was convicted, and, thus, there was no basis for his U.S.S.G.
§ 3B1.1(c) enhancement.
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Generally, a district court’s determination of defendant’s offense level due
to his status as a leader or organizer is a finding of fact that we review for clear
error. United States v. Phillips, 287 F.3d 1053, 1055 (11th Cir. 2002). However,
because Dykes did not raise below his argument that Magno and Hill were not
criminal participants, this argument will be reviewed for plain error. See United
States v. Bennett, 472 F.3d 825, 831 (11th Cir. 2006). We review de novo
allegations of impermissible double-counting under the Sentencing Guidelines.
United States v. Dudley, 463 F.3d 1221, 1226 (11th Cir. 2006).
Under § 3B1.1(c), a two-level increase to the offense level is warranted “[i]f
the defendant was an organizer, leader, manager, or supervisor.” 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 participants. U.S.S.G.
§ 3B1.1, comment. (n.2). “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). The defendant is counted as one of the
participants. United States v. Holland, 22 F.3d 1040, 1045 (11th Cir. 1994). There
must, however, be one other criminal participant than the defendant. Id. at 1045
n.8
“Impermissible double counting occurs only when one part of the Guidelines
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is applied to increase a defendant’s punishment on account of a kind of harm that
has already been fully accounted for by application of another part of the
Guidelines.” Dudley, 463 F.3d at 1226-27 (citation omitted). Double counting is
permissible, however, if “the Sentencing Commission . . . intended that result and
each guideline section in question concerns conceptually separate notions relating
to sentencing.” Id. at 1227 (citation omitted). “We presume that the Sentencing
Commission intended separate guidelines sections to apply cumulatively, unless
specifically directed otherwise.” Id. (citations and quotations omitted). In cases
where a district court has stated that, even if it erred in applying an enhancement, it
would have imposed the same sentence regardless, in light of 18 U.S.C. § 3553(a)
factors, any error in calculating the enhancement does not require remand,
assuming the reasonableness of the sentence ultimately imposed. United States v.
Keene, 470 F.3d 1347, 1348-49 (11th Cir. 2006).
Because we conclude from the record that the court’s application of §
3B1.1(c) did not result in double-counting, and the district court did not plainly err
in finding that Dykes supervised one or more participants, the district court did not
err in applying a supervisory-role enhancement.
Regarding the reasonableness of his sentence, Dykes first argues that the
district court erred because it presumed that a within-guidelines sentence was
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reasonable. Second, he argues that the court failed to consider the nature and
circumstances of the offense and the need to avoid unwarranted sentence
disparities. Third, he argues that his sentence is substantively unreasonable in light
of the unwarranted sentencing disparities between his sentence and that of his
codefendants, and the court’s “single-minded” focus on the seriousness of his
misconduct.
Pursuant to the Supreme Court’s instructions in United States v. Booker, 543
U.S. 220, 125 S. Ct. 738 (2005), we review for reasonableness a district court’s
sentence, imposed after consulting the guidelines and considering the factors set
forth at § 3553(a). United States v. Williams, 435 F.3d 1350, 1353 (11th Cir.
2006). When reviewing a sentence for unreasonableness, we must evaluate whether
the sentence achieves the purposes of sentencing stated in § 3553(a). United States
v. Williams, 456 F.3d 1353, 1360 (11th Cir. 2006), petition for cert. filed, (U.S. Oct
19, 2006) (No. 06-7352). Our evaluation must be made having regard for the
factors listed in § 3553(a) and the reasons for the particular sentence as stated by
the district court. Id. at 1361. This is a “deferential” review, and the burden is on
the defendant to prove that the sentence is unreasonable. Keene, 470 F.3d at 1350.
In sentencing a defendant, the factors that a district court should consider
include: (1) the nature and circumstances of the offense; (2) the history and
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characteristics of the defendant; (3) the need for the sentence to reflect the
seriousness of the offense, promote respect for the law, afford adequate deterrence,
protect the public, and provide needed correctional treatment; (4) the applicable
guideline range; (5) the pertinent Sentencing Commission policy statements; and
(6) the need to avoid unwarranted sentencing disparities. See 18 U.S.C.
§ 3553(a)(1)-(7). A district court is not required to state explicitly on the record
that it has considered the § 3553(a) factors, so long as the record reflects that the
court did consider those factors in reviewing the defendant’s sentencing objections.
United States v. Dorman, ___ F.3d ___, (11th Cir. June 8, 2007) (No. 04-14886);
see also United States v. Scott, 426 F.3d 1324, 1329-30 (11th Cir. 2005).
Because the record reflects that the district court adequately and properly
considered the § 3553(a) factors, we conclude that Dykes’s sentence was
reasonable. Accordingly, we affirm his sentence.
AFFIRMED.
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