United States v. Marlo Kevin McElroy , 180 F. App'x 82 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 9, 2006
No. 05-15481 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-00458-CR-T-17-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARLO KEVIN MCELROY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 9, 2006)
Before BLACK, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
Defendant-appellant Marlo Kevin McElroy pleaded guilty to possession
with intent to distribute five grams or more of crack cocaine, in violation of 21
U.S.C. § 841. There was no written plea agreement. The government gave notice
that the penalties for possession were a mandatory minimum sentence of five years
imprisonment and a statutory maximum sentence of forty years imprisonment
under § 841(b)(1)(B).
The underlying facts of the case are these: While conducting surveillance in
the park, police observed McElroy pull a paper napkin from his pocket; the napkin
contained a plastic bag with pieces of crack. McElroy sold some of the crack to his
codefendant, who then sold the crack to a man in a car. When police moved in,
McElroy ran and threw the napkin to the ground. McElroy refused to stop when
ordered to do so, and police were forced to subdue him with pepper spray. Police
retrieved the napkin, which lab tests confirmed contained 6.2 grams of crack.
McElroy disputed the amount of crack, and a subsequent lab test showed the
amount equaled 5.9 grams. He admitted, however, that he possessed and sold a
substance he knew to be crack cocaine. At the change-of-plea hearing, the
magistrate judge determined that McElroy had pleaded to the essential elements,
even if he disputed some of the factual proffer. The magistrate judge also ensured
that McElroy understood that he faced a mandatory minimum sentence of five
years imprisonment and a maximum sentence of forty years imprisonment.
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McElroy indicated his “concern” over the five-to-forty years, but reaffirmed his
intent to plead guilty. The court accepted the plea on the magistrate judge’s
recommendation.
The probation officer prepared a presentence investigation report (“PSI”),
assigning a base offense level of 26 under U.S.S.G. § 2D1.1(c)(7).1 The probation
officer then listed McElroy’s prior felony convictions for crimes of violence and a
controlled substance offense, qualifying McElroy as a career offender under
U.S.S.G. § 4B1.1. Because the statutory maximum penalty was 40 years
imprisonment, the offense level was increased to 34 under § 4B1.1. With a three-
level reduction for acceptance of responsibility, the total offense level was 31. The
probation officer determined that McElroy had numerous prior convictions, which
resulted in 10 criminal history points and a criminal history category V, but which
was increased to VI under the career-offender provision. The resulting guidelines
range was 188 to 235 months imprisonment.
McElroy objected to, inter alia, the application of the career offender
provision on the ground that the failure to list the prior convictions in the
1
Under U.S.S.G. § 2D1.1(c)(7), the base offense level is 26 for offenses involving at least
5 grams but less than 20 grams of crack. Thus, even though the probation officer listed the amount
for which McElroy was responsible as 6.2 grams - and McElroy asserts that the proper amount was
5.9 grams - the discrepancy is not relevant for purposes of calculating the range. Notably, the
district court sustained the objection at sentencing.
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indictment resulted in Sixth Amendment and due process violations. He further
argued that he had no notice that he faced enhanced penalties under § 4B1.1.
At sentencing, McElroy conceded that the application of the career-offender
provision was correct, but he claimed that it over-represented his crime and his
criminal history. He noted the discrepancies between the calculated guidelines
range and the sentences he faced if his guidelines range was calculated without the
prior convictions (that were not charged in the indictment) or if he was sentenced
based on his actual criminal history points. He further argued that the two
predicate offenses should not count, as he had only pleaded guilty because the state
offered him “sweetheart” deals. He urged the court to use its discretion to sentence
him below the guidelines range. The district court overruled the objection, finding
that the guidelines were properly calculated.
McElroy next argued that he should not be considered a career offender
because he was not told at the time he entered his plea that he faced an enhanced
sentence. The court rejected this argument, stating that McElroy had been advised
that the guidelines applied, and he was aware of his own criminal history. The
court then granted the government’s motion for a one-point reduction based on
substantial assistance, U.S.S.G. § 5K1.1, and added an additional one-point
reduction. With a total offense level of 29, the guidelines range became 151 to 188
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months. Considering the guidelines range and the sentencing factors of 18 U.S.C.
§ 3553(a), the court sentenced McElroy to 151 months imprisonment, which it
found to be sufficient, but not greater than necessary, to achieve the sentencing
goals. McElroy now appeals, challenging (1) whether the sentence imposed was
reasonable, and (2) whether the court was required to give him actual written
notice before applying enhanced penalties for his status as a career offender.
A. Reasonableness
McElroy argues that his status as a career offender greatly increased the
guidelines range, rendering his sentence unfair.
After Booker, we review a defendant’s sentence for reasonableness.2 United
States v. Winingear, 422 F.3d 1241, 1244 (11th Cir. 2005); United States v.
Crawford, 407F.3d 1174, 1179 (11th Cir. 2005). Additionally, the district court is
still required to correctly calculate the guidelines range. See United States v. Lee,
427 F.3d 881, 892 (11th Cir. 2005). McElroy bears the burden of showing that his
sentence was unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir.
2005).
Here, the sentence imposed was reasonable. First, the court imposed
2
This court has rejected the government’s argument that a sentence within the guidelines
range is presumptively reasonable. United States v. Winingear, 422 F.3d 1241, 1246 (11th Cir.
2005) (holding that sentences within the range are not per se reasonable).
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sentence at the bottom of the guidelines range, and this sentence fell well below the
statutory maximum of forty years imprisonment. United States v. Martinez, 434
F.3d 1318, 1322 (11th Cir. 2006); Winingear, 422 F.3d at 1246. Second, the court
departed downward another point in addition to the reduction for substantial
assistance. Moreover, the court considered McElroy’s lengthy criminal history,
which had resulted in a criminal history category V without the career-offender
enhancement. The court then considered the sentencing factors of § 3553(a) and
determined that a sentence at the low end of the range was sufficient to meet these
factors.3 Although the court did not state the weight given to each factor, it was
not required to do so. United States v. Scott, 426 F.3d 1324, 1329 (11th Cir.
2005); United States v. Robles, 408 F.3d 1324, 1328 (11th Cir. 2005). McElroy
has offered nothing to show that his sentence was unreasonable.
B. Notice
McElroy next argues that his due process rights were violated when the
court failed to advise him at the time of his plea that he faced an enhanced sentence
based on his status as a career-offender. He contends that notice of possible
career-offender status is required just as notice of enhanced penalties is required
3
These factors include the available sentences, the calculated guideline range, the nature
and circumstances of the offense, and the need for the sentence to reflect the seriousness of the
offense, promote respect for the law, and provide just punishment for the offense. 18 U.S.C. §
3553(a).
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under 21 U.S.C. § 851.
Whether the application of the guidelines violates due process is a question
of law subject to de novo review. United States v. Johns, 984 F.2d 1162, 1163
(11th Cir. 1993).
This court has rejected McElroy’s claim that he was entitled to notice before
his sentence was enhanced based on his status as a career offender, Young v.
United States, 936 F.2d 533, 536 (11th Cir. 1991), and McElroy has cited no
authority for his argument. Moreover, McElroy was aware of the maximum
penalty he faced, and the sentence imposed fell well below the maximum.
Accordingly, for the foregoing reasons, we AFFIRM.
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