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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-10838
Non-Argument Calendar
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D.C. Docket No. 1:16-cr-00315-TWT-AJB-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELGIN BYRD,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(February 4, 2020)
Before MARTIN, ROSENBAUM and FAY, Circuit Judges.
PER CURIAM:
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Elgin Byrd appeals his convictions for aiding and abetting in assaulting a
confidential informant (“CI”), in violation of 18 U.S.C. §§ 111(a)(1) and 2, and
aiding and abetting in robbery of federal property, in violation of 18 U.S.C.
§§ 2114(a) and 2, after he pled guilty to those and other offenses. We affirm.
I. BACKGROUND
A grand jury indicted Byrd and his codefendant, Michael Simpson, in an
eight-count indictment. Byrd entered into a plea agreement with the government in
which he agreed to plead guilty to four counts in the indictment: (1) heroin
distribution, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2
(Count Two); (2) aiding and abetting in assaulting a CI, in violation of 18 U.S.C.
§§ 111(a)(1) and 2 (Count Four); (3) aiding and abetting in the robbery of federal
property, in violation of 18 U.S.C. §§ 2114(a) and 2 (Count Five); and (4) aiding
and abetting in the possession of a firearm during a crime of violence, in violation
of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2 (Count Six).
At Byrd’s change-of-plea hearing, the government laid out the factual basis
for the plea. On August 3, 2016, a CI attempted to purchase two guns and heroin
from Byrd; however, when Byrd stated the firearms were at a nearby location, the
CI refused to go with Byrd to pick up the guns and left after buying heroin from
him. After several discussions by phone, on August 8, Byrd agreed to sell the CI
three guns the following day. Byrd and Simpson made several phone calls between
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each other on August 8 and 9. On August 9, after calling Byrd to confirm the
transaction, the CI travelled to Byrd’s apartment. Shortly after the CI arrived, Byrd
called Simpson, who had entered and exited the stairwell leading to Byrd’s
apartment within minutes of the CI’s arrival. Simpson returned to the apartment
building, retrieved a pistol from a different apartment, and went back outside while
he was once again on the phone with Byrd. When the CI left Byrd’s apartment,
Byrd called Simpson. As the CI was walking to leave the property, Simpson put a
gun against the CI’s back, pushed him to the ground, and took $600 (which had
been provided by the government), his car keys, and a cell phone and Bluetooth
that had government recording equipment installed on them. After Byrd was
arrested, he told officers that he and Simpson had been “fake selling guns” and that
they had decided to rob the CI because they did not have guns to sell. Byrd also
admitted that some of the money from the robbery was going to him.
After the government finished the factual proffer, Byrd told the district court
that he did not disagree with any of the stated facts and admitted that he was guilty.
The court accepted the plea and adjudicated him guilty.
The probation office prepared a presentence investigation report (“PSI”).
Pursuant to U.S.S.G. § 4B1.1, the PSI applied a base offense level of 34 because
Byrd was a career offender; it then applied a three-level reduction for acceptance
of responsibility, pursuant to U.S.S.G. § 3E1.1(a). As a career offender, Byrd’s
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criminal history category was adjusted to VI, pursuant to U.S.S.G. § 4B1.1. Based
on an offense level of 31 and a criminal history category of VI, the guideline range
was 188 to 235 months of imprisonment plus a consecutive 84-month sentence.1
At the sentencing hearing, the district court ultimately calculated the same
guideline range. The government recommended a total sentence of 189 months of
imprisonment. It stated that, during plea negotiations, the parties did not think that
Byrd was going to be a career offender, so the government had arrived at its
recommendation by recalculating the range based on an offense level that did not
use the career-offender enhancement. The government stated:
You know, Mr. Simpson is the one who showed up with a gun on
very short notice and actually committed the aggravated assault and
robbery of a confidential informant. And so a sentence for Mr. Byrd
that is seven, eight years above where Mr. Simpson would be seems
like a bit of a disparity. I recognize part of that’s because the guidelines
count for him much greater because of the career offender guidelines .
...
The district court sentenced Byrd to a total of 189 months of imprisonment, 5 years
of supervised release, and $600 in restitution.
On appeal, Byrd challenges his convictions for aiding and abetting in an
assault of a CI and a robbery of federal property, 2 arguing there was an insufficient
factual basis for the guilty plea because, during sentencing, the prosecutor argued
1
Byrd filed objections to the PSI, which are not relevant to this appeal.
2
Byrd does not make any arguments regarding the offenses, so he has abandoned any challenge
to them. See United States v. Cunningham,
161 F.3d 1343, 1344 (11th Cir. 1998).
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that Byrd should be given leniency because his codefendant “actually committed”
the robbery and assault.
II. DISCUSSION
Where a defendant fails to object to the sufficiency of the factual proffer
supporting the guilty plea, we review for plain error. United States v.
Puentes-Hurtado,
794 F.3d 1278, 1285-86 (11th Cir. 2015). To establish plain
error, a defendant must show that (1) there is error, (2) the error is plain, and (3) the
error affects substantial rights. Id. at 1286. Where those three conditions are met,
we may exercise our discretion to correct the error if it “seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings.” Id. (alteration in
original) (quoting United States v. Olano,
507 U.S. 725, 732,
113 S. Ct. 1170, 1776
(1993)). Challenges to the sufficiency of the factual proffer are not waived by the
entry of a guilty plea. Id. at 1286-87.
Before accepting a guilty plea, the district court “must determine that there is
a factual basis for the plea.” Fed. R. Crim. P. 11(b)(3). “The standard for
evaluating challenges to the factual basis for a guilty plea is whether the trial court
was presented with evidence from which it could reasonably find that the
defendant was guilty.” United States v. Lopez,
907 F.2d 1096, 1100 (11th Cir.
1990). Statements made under oath during a plea colloquy receive a strong
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presumption of truthfulness. United States v. Medlock,
12 F.3d 185, 187 (11th Cir.
1994).
The federal aiding-and-abetting statute provides that a person who aids or
abets the commission of an offense is liable as a principal. 18 U.S.C. § 2. A
person is liable under this statute if “he (1) takes an affirmative act in furtherance
of that offense, (2) with the intent of facilitating the offense’s commission.”
Rosemond v. United States,
572 U.S. 65, 71,
134 S. Ct. 1240, 1245 (2014). A
defendant “can be convicted as an aider and abettor without proof that he
participated in each and every element of the offense,” and this theory of liability
“comprehends all assistance rendered by words, acts, encouragement, support, or
presence.” Id. at 73, 134 S. Ct. at 1246-47 (first quoting United States v.
Sigalow,
812 F.2d 783, 785 (2d Cir. 1987); then quoting Reves v. Ernst &
Young,
507 U.S. 170, 178,
113 S. Ct. 1163, 1170 (1993)).
The factual proffer from the government showed that Byrd (1) planned with
his codefendant to rob a CI; (2) was to receive money from the robbery;
(3) arranged for the CI to meet with him at his apartment; and (4) called his
codefendant, Simpson, both as the CI arrived and left the apartment. On these
facts, the district court could have reasonably found that Byrd affirmatively acted
with the intent to help Simpson rob the CI. Id. at 71, 134 S. Ct. at 1245. Although
the prosecutor argued that Byrd should receive leniency because Simpson “actually
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committed” the robbery and assault, that statement is not inconsistent with Byrd’s
liability under the aiding-and-abetting statute. See id. at 73, 134 S. Ct. at 1246.
Accordingly, the district court did not plainly err in finding that a sufficient factual
basis supported the guilty plea.
AFFIRMED.
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