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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-14852
Non-Argument Calendar
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D.C. Docket No. 5:17-cr-00022-MTT-CHW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DELMA GODDARD,
a.k.a., Shug
a.k.a., Big Hxmie,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
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(September 3, 2020)
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Before MARTIN, ROSENBAUM, and ED CARNES, Circuit Judges.
PER CURIAM:
After a four-day trial, a jury found Delma Goddard guilty of 23 crimes that
he committed during a string of drug and gun sales to a confidential informant. He
appeals his conviction and sentence, raising three issues. First, he contends that his
trial counsel provided ineffective assistance. Second, he contends that the district
court erred in not instructing the jury on the defense of entrapment. Finally, he
contends that the district court clearly erred at sentencing when it found that he had
been involved in a drug sale described in the presentence investigation report but
not charged in the indictment.
I.
In 2017 Goddard was charged in a 16-defendant, 51-count indictment with
various drug and gun charges and related conspiracies. Goddard was named in 37
of those counts. The government later filed a 4-defendant, 27-count second
superseding indictment, and Goddard was named in 26 of those counts. He was
charged with: 1 count of conspiracy to possess with the intent to distribute
controlled substances, in violation of 21 U.S.C. §§ 846 and 841(a)(1) and
(b)(1)(A), (B), and (C); 13 counts of distributing or possessing with the intent to
distribute controlled substances in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A),
(B), or (C); 6 counts of possession of a firearm as a convicted felon, in violation of
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18 U.S.C. § 922(g); and 6 counts of possession of a firearm in furtherance of a
drug trafficking crime, in violation of 18 U.S.C. § 924(c). Goddard decided to go
to trial, and the jury found him guilty of 23 counts.1
Goddard’s presentence investigation report calculated an advisory guidelines
range of 360 months to life imprisonment. It also determined that Goddard was
subject to five separate and consecutive mandatory minimum sentences for his
§ 924(c) convictions, totaling 105 years. The parties agreed at sentencing that this
was the correct guidelines range and mandatory minimum sentence.
Goddard objected to only a single paragraph of the PSR: a paragraph
describing a controlled drug buy that had not been charged in the second
superseding indictment. That paragraph said that two confidential informants went
to buy crack cocaine from a third party, Goddard showed up and gave the third
party the drugs, and then the informants bought those drugs. Goddard argued that,
even though one of the confidential informants had testified at trial about that drug
sale, the allegation was unsubstantiated. The district court overruled the objection
and adopted the PSR. It considered the 18 U.S.C. § 3553(a) factors and sentenced
Goddard to a total of 145 years imprisonment.
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During trial, the government voluntarily dismissed three of the 26 counts, one each of
the charges for drug distribution, possession of a firearm as a convicted felon, and possession of
a firearm in furtherance of a drug trafficking crime.
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II.
Goddard first contends that his trial counsel was ineffective in two ways: (1)
for failing to move to suppress a pre-arrest statement he made to law enforcement
agents, and (2) for failing to provide notice of intent to examine a government
witness about a prior conviction, which prevented his counsel from impeaching the
witness on the basis of that conviction. See Fed. R. Evid. 609.
“Generally, we do not address ineffective assistance claims on direct appeal,
except in the rare instance when the record is sufficiently developed for us to do
so.” United States v. Greer,
440 F.3d 1267, 1272 (11th Cir. 2006). This is not one
of those rare instances.
Goddard did not raise an ineffective assistance of counsel claim before the
district court on either of the grounds he now asserts. And because the record is
not developed enough for us to review the merits of his arguments, we will not
consider them in this direct appeal. See United States v. Perez-Tosta,
36 F.3d
1552, 1563 (11th Cir. 1994) (stating that “a claim of ineffective assistance of
counsel cannot be considered on direct appeal if the claims were not first raised
before the district court and if there has been no opportunity to develop a record of
evidence relevant to the merits of the claim”).
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III.
Goddard next contends that the district court erred by refusing to instruct the
jury on the defense of entrapment. He argues that there was enough evidence to
support an entrapment instruction because all of his sales of drugs and guns to the
confidential informant started with the informant asking for those illegal goods.
We review de novo a district court’s refusal to give an entrapment
instruction. United States v. Dixon,
901 F.3d 1322, 1346–47 (11th Cir. 2018)
(recognizing that even if some of our decisions have “purported to review the
question for an abuse of discretion,” it is clear that “[t]he correct standard of
review is de novo”) (quotation marks omitted). A defendant who asserts the
affirmative defense of entrapment is entitled to an instruction on it “whenever there
is sufficient evidence from which a reasonable jury could find
entrapment.” Mathews v. United States,
485 U.S. 58, 62,
108 S. Ct. 883 (1988).
To prove entrapment, the defendant must establish two elements: (1) the
government induced the crime, and (2) the defendant was not predisposed to
commit it.
Dixon, 901 F.3d at 1346. When seeking a jury instruction on
entrapment, the “defendant bears the initial burden of production as to government
inducement.” United States v. Sistrunk,
622 F.3d 1328, 1333 (11th Cir. 2010)
(quoting United States v. Ryan,
289 F.3d 1339, 1344 (11th Cir. 2002)). He can
meet that burden by “produc[ing] any evidence sufficient to raise a jury issue that
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the [g]overnment’s conduct created a substantial risk that the offense would be
committed by a person other than one ready to commit it.”
Dixon, 901 F.3d at
1346.
Though “this burden is light,” it is not weightless.
Sistrunk, 622 F.3d at
1333 (quoting United States v. Brown,
43 F.3d 618, 623 (11th Cir. 1995)). For
example, it is not enough for the defendant to show that the government merely
initiated contact with the defendant, or that the government suggested a crime,
solicited it, or provided the opportunity for committing it.
Id. Instead, proving
government inducement requires showing that the government engaged in some
sort of “persuasion or mild coercion,” such as both providing the opportunity and
exerting excessive pressure or manipulating the defendant’s non-criminal motive.
Id. Persuasion or mild coercion can be shown by evidence that the defendant
reacted unfavorably to the government’s attempted inducement, or “that several
attempts at setting up an illicit deal had failed and on at least one occasion [the
defendant] had directly refused to participate.” Id. (quoting
Ryan, 289 F.3d at
1344).
Goddard cannot show government inducement. He points to no evidence
that the government manipulated him, no evidence that it placed excessive pressure
on him, and no evidence that he refused to participate in any of the controlled buys.
Nor could he; Goddard accepted every one of the confidential informant’s offers to
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buy illegal goods, from the first to the last. Goddard’s only argument that he was
induced is that the government, through its confidential informant, initiated contact
in each of the controlled buys. That is not enough. See
Brown, 43 F.3d at 627
(“[I]t is not entrapment for a Government agent to . . . offer, either directly or
through an informer or other decoy, to engage in an unlawful transaction with a
defendant.”) (quoting jury instruction). Goddard was not entitled to a jury
instruction on the defense of entrapment.
IV.
Goddard contends that the district court clearly erred by accepting the PSR’s
description of a drug sale that was not charged in the indictment. He argues that
the record and testimony do not support the PSR’s description of his involvement
in the sale of those drugs.
We review the district court’s factual findings about relevant conduct for
sentencing only for clear error. United States v. Maddox,
803 F.3d 1215, 1220
(11th Cir. 2015). It is well established that a district court in sentencing may
consider uncharged conduct, and even conduct for which a defendant was
acquitted, if it finds the government proved the conduct by a preponderance of the
evidence. See United States v. Culver,
598 F.3d 740, 752 (11th Cir. 2010); United
States v. Hamaker,
455 F.3d 1316, 1336 (11th Cir. 2006). And when the defendant
challenges the factual basis of part of the PSR, the government bears the burden of
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proving the disputed facts by a preponderance of the evidence. See United States
v. White,
663 F.3d 1207, 1216 (11th Cir. 2011). The district court may base its
factfinding at sentencing on evidence presented at trial, undisputed statements in
the PSR, and evidence presented at the sentence hearing.
Id.
Here, the evidence presented at trial was more than sufficient for the district
court to find by a preponderance of the evidence that Goddard participated in the
disputed drug sale. The government’s confidential informant was the buyer in that
sale, and he testified in detail about Goddard’s role in it. He testified that he was
present when Goddard showed up to deliver drugs to a third party — drugs the
informant then bought from the third party. The PSR relied on that testimony for
its description of the sale, and although Goddard disputed it, he offered no
evidence, either at trial or at sentencing, to contradict it. The district court did not
clearly err in finding that Goddard took part in that drug sale.
AFFIRMED.
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