United States v. Antonio Russell Ford , 649 F. App'x 756 ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-10068
Non-Argument Calendar
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D.C. Docket No. 8:13-cr-00230-SDM-AEP-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIUS RUSSEL FORD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 4, 2016)
Before HULL, ROSENBAUM and BLACK, Circuit Judges.
PER CURIAM:
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Antonius Ford appeals his conviction and sentence for conspiracy to
distribute and possess with intent to distribute less than 500 grams of a mixture
containing cocaine, in violation of 21 U.S.C. §§ 846, 841(b)(1)(C), and 851. Ford
raises several issues on appeal, which we address in turn. 1 After review, we affirm
Ford’s conviction and sentence.
I. DISCUSSION
A. Judgment of acquittal
Ford first contends the district court erred by denying his motion for a
judgment of acquittal as there was insufficient evidence of a conspiratorial, rather
than a mere buyer-seller, relationship. He asserts the evidence showed he
purchased only “personal-use amounts” of cocaine, and the Government did not
prove an intent to distribute the cocaine he purchased from Richard Soler.
Distributing, and possessing with the intent to distribute, cocaine is a
violation of 21 U.S.C. § 841(a)(1). To support a conspiracy conviction under
21 U.S.C. § 846, the government must establish beyond a reasonable doubt that
there was (1) an agreement between the defendant and one or more persons, (2) the
object of which is an offense under Title 21 of the U.S. Code. United States v.
Baker, 432 F.3d 1189, 1232 (11th Cir. 2005), abrogated on other grounds by
Davis v. Washington, 547 U.S. 813, 821 (2006). The agreement must have the
1
Because we write for the parties, we set out only those facts necessary to explain our
decision.
2
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same criminal objective, such as the joint objective of distributing drugs. United
States v. Dekle, 165 F.3d 826, 829 (11th Cir. 1999). A conspiracy may be
established circumstantially, and may be inferred from a continuing relationship
that results in the repeated transfer of illegal drugs to the purchaser. United States
v. Mercer, 165 F.3d 1331, 1333, 1335 (11th Cir. 1999). A conspiratorial
agreement also may be inferred from circumstances such as multiple transfers in a
short time period, a seller fronting drugs to a buyer, and mutual knowledge of sales
territories. United States v. Beasley, 2 F.3d 1551, 1560-61 (11th Cir. 1993).
Nevertheless, when “the buyer’s purpose is merely to buy and the seller’s purpose
is merely to sell, and no prior or contemporaneous understanding exists between
the two beyond the sales agreement,” there is no conspiracy. Mercer, 165 F.3d at
1335.
The district court did not err by denying Ford’s motion for judgment of
acquittal. See United States v. Friske, 640 F.3d 1288, 1290 (11th Cir. 2011)
(reviewing de novo a district court’s denial of a motion for a judgment of
acquittal). Drawing all reasonable inferences and credibility choices in the
Government’s favor, Soler’s testimony and the recorded phone conversations
permitted a reasonable jury to infer that Ford had a common agreement with Soler
to distribute cocaine to customers. Soler’s testimony that Ford purchased a half
ounce of cocaine from him two to three times per week, and that he once sold Ford
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cocaine “on credit” based on their working relationship, could lead a reasonable
juror to infer that Ford was in a continuing relationship with Soler that resulted in
the repeated transfer of illegal drugs and whose object was the unlawful
distribution of cocaine. The wiretap evidence reflecting Ford’s various requests
for a “softball” and to “come eat,” and his expression of gratitude to Soler, only
buttressed that testimony and the reasonable inference. This was especially so in
light of Soler’s testimony that “softball” meant powder cocaine, that “come eat”
meant to purchase cocaine, and that the expression of gratitude was for his fronting
cocaine to Ford. Moreover, Soler’s testimony that Ford told him that he was
reselling the purchased cocaine to primarily young and white customers in “the
Springs,” and that the two had discussed their respective profits, could lead a
reasonable juror to infer a conspiratorial agreement with the joint unlawful
objective of distributing cocaine. The wiretap evidence reflecting Ford’s statement
that he was “going to go out to Spring Hill and do some target practice,” could
have buttressed the testimony and an inference of conspiratorial agreement on such
a basis.
There was sufficient evidence to support the jury’s chosen conclusion that
Ford was involved in a conspiracy, and the jury was allowed to choose among
multiple reasonable inferences in reaching its verdict. See id. at 1291 (explaining
the evidence need not be inconsistent with every reasonable hypothesis except
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guilt, and the jury is free to choose between or among reasonable conclusions that
could be drawn from the evidence presented at trial). Ford’s argument the jury’s
finding of a lesser drug quantity rendered Soler’s entire testimony incredible is
unavailing, as the jury was permitted to disbelieve Soler’s testimony with respect
to drug quantity and believe the rest. See United States v. Prince, 883 F.2d 953,
959 n.3 (11th Cir. 1989) (stating a jury may choose to believe or disbelieve any
part or all of a witness’s testimony).
B. Deprivation of fair trial
Second, Ford contends the court erred by (1) giving an allegedly confusing
and inadequate jury instruction as to the difference between a buyer-seller
relationship and a conspiracy, and not giving an instruction on simple possession, a
lesser-included offense; (2) not sua sponte intervening during the government’s
closing argument which allegedly improperly suggested incriminating facts beyond
the record evidence; and (3) failing to strike, and not instructing the jury to
disregard, inadmissible hearsay testimony of the drug dealer from whom he
purchased the cocaine at issue as to statements made by other cocaine purchasers,
all of which together allegedly cumulatively deprived him of a fair trial.
There is no cumulative error that deprived Ford of a fair trial because the
district court did not individually err, plainly or otherwise, based on any of Ford’s
alleged errors. See United States v. Waldon, 363 F.3d 1103, 1110 (11th Cir. 2004)
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(stating where there is no error, or only a singular error, there can be no cumulative
error). As to the court’s given jury instruction regarding the nature of the
conspiratorial agreement, Ford’s statements during the charge conference expressly
accepting that instruction, which he noted was “fine” and “better” than a previous
version, invited any error, and, thus, waived his ability to challenge the instruction
on appeal. See United States v. House, 684 F.3d 1173, 1196 (11th Cir. 2012)
(stating where a party expressly accepts a jury instruction, such an action amounts
to invited error and serves as a waiver of the right to challenge the instruction on
appeal). As to the court’s failure to sua sponte instruct the jury regarding simple
possession, the court was under no obligation to do so absent a request by Ford.
See United States v. Chandler, 996 F.2d 1073, 1099 (11th Cir. 1993) (explaining
where a defendant does not request an instruction for a lesser-included offense, and
fails to object to the omission at trial of such an instruction, it is not error for a
district court to fail to sua sponte give such an instruction). 2
As to the court’s failure to intervene regarding the prosecutor’s remarks in
closing argument and rebuttal, Ford has not shown any improper vouching. See
United States v. De La Cruz Suarez, 601 F.3d 1202, 1218 (11th Cir. 2010) (stating
2
Ford argues his counsel was ineffective for conceding Ford’s drug purchases in his
opening statement and failure thereafter to request a theory-of defense instruction. However, the
record is not sufficiently developed to review that claim on direct appeal. See United States v.
Bender, 290 F.3d 1279, 1284 (11th Cir. 2002) (holding this Court will not consider claims of
ineffective assistance of counsel on direct appeal unless the factual record is developed
sufficiently to review the claim presented).
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to establish improper prosecutorial vouching, a defendant must show that “(1) the
prosecutor placed the prestige of the government behind the witness by making
explicit [personal] assurances of the witness’s credibility, or (2) the prosecutor
implicitly vouched for the witness’s credibility by implying that evidence not
formally presented to the jury supports the witness’s testimony”). Apart from the
inaccurate statement regarding Ford picking up cocaine at the back, rather than
front, of the Café, which involved a specific fact that was immaterial to his
involvement in the charged conspiracy, all of the Government’s statements to the
jury were reasonable inferences that could be drawn from record evidence. See
United States v. Epps, 613 F.3d 1093, 1101 (11th Cir. 2010) (explaining where the
government merely makes explicit an inference that the jury could reasonably have
drawn from the evidence, no improper vouching occurs). Therefore, the court did
not plainly err 3 by not sua sponte intervening on the basis of improper vouching.
See United States v. Bernal-Benitez, 594 F.3d 1303, 1316 (11th Cir. 2010)
(reviewing a district court’s failure to sua sponte intervene and instruct the jury to
disregard a prosecutor’s statements to the jury for plain error).
As to the court’s failure to sua sponte instruct the jury to disregard Soler’s
inadmissible hearsay testimony regarding the subsequent drug sales, Ford has not
3
To establish plain error, an appellant must show: “(1) error, (2) that is plain and (3) that
affects substantial rights. If all three conditions are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” United States v. Turner, 474 F.3d 1265,
1276 (11th Cir. 2007).
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shown that the lack of any such instruction was plain error. See United States v.
Rixner, 548 F.2d 1224, 1227-28 (5th Cir. 1977)4 (reviewing for plain error a
court’s failure to sua sponte give a cautionary instruction to the jury to not consider
inadmissible hearsay evidence). Specifically, the Government did not rely on the
inadmissible heasay to support its case in chief, and in fact relied directly on
Soler’s testimony about Ford’s own statement that he resold the purchased cocaine
at issue to establish that Ford redistributed cocaine as part of the conspiracy. Thus,
Ford has not shown that an additional cautionary instruction regarding the
inadmissible testimony, beyond the court’s ruling sustaining his hearsay objection,
would have affected the outcome of his district court proceedings, such that there
is not plain error. See United States v. Richardson, 233 F.3d 1285, 1288 (11th Cir.
2000) (explaining to show an error affected his substantial rights, a defendant must
demonstrate that the error affected the outcome of the district court proceedings).
As to the court’s failure to strike Soler’s inadmissible hearsay testimony upon
Ford’s request, Ford has offered no explanation for how the court’s decision not to
formally strike the testimony constituted an abuse of discretion. See United States
v. Woody, 567 F.2d 1353, 1357 (5th Cir. 1978) (reviewing a court’s failure to strike
testimony for an abuse of discretion).
4
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to close of business on September 30, 1981.
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C. Sentencing
Last, Ford contends the court imposed a procedurally unreasonable sentence
by sentencing him as a career offender under U.S.S.G. § 4B1.1, as U.S.S.G.
§ 4B1.2’s residual clause defining a qualifying crime of violence is
unconstitutionally vague, and his predicate convictions were not charged in his
indictment or proved to a jury.
The Supreme Court held the residual clause of the Armed Career Criminal
Act (ACCA) was unconstitutionally vague. See Johnson v. United States, 135 S.
Ct. 2551, 2557-58 (2015). However, this Court has held that Johnson’s holding
does not apply to the Sentencing Guidelines. United States v. Matchett, 802 F.3d
1193-96 (11th Cir. 2015). We reasoned that Johnson was limited by its terms to
criminal statutes that defined elements of a crime or fixed punishments—neither of
which the advisory guidelines did. Id. at 1194. Ford’s argument the district court
was not permitted to rely on the residual clause in sentencing Ford under the career
offender guideline is foreclosed by Matchett.
Moreover, the district court did not err in determining Ford’s prior fleeing-
or-eluding conviction under Florida Statutes section 316.1935(2) qualified as a
“crime of violence” under § 4B1.2)(a)(2)’s residual clause. This Court analyzed
Ford’s conviction offense and concluded that it qualified as a “violent felony”
under the ACCA’s residual clause. See United States v. Petite, 703 F.3d 1290,
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1294-97, 1301 (11th Cir. 2013). Although Petite has been abrogated by Johnson
to the extent the ACCA’s residual clause is unconstitutionally vague, we “must still
adhere” to Petite’s reasoning as to why Ford’s offense would have qualified under
the ACCA’s residual clause for purposes of determining if his offense qualifies
under § 4B1.2(a)(2)’s identical clause. See Matchett, 802 F.3d at 1195-96. In this
instance, as the Court noted in Petite, the risks posed by Ford’s offense are
substantial, as flight from a law enforcement vehicle inherently invites a
confrontational response by police officers, such as a high-speed chase, that poses
a serious potential risk of physical injury to third persons in the flight’s vicinity.
See Petite, 703 F.3d at 1294-97, 1301. As such, given the risks posed by the
fleeing-or-eluding offense, Ford’s prior § 316.1935(2) conviction meets the
definition of a “crime of violence” under § 4B1.2(a)(2)’s residual clause. See id.;
U.S.S.G. § 4B1.2(a)(2).5
Additionally, the Supreme Court in Almendarez-Torres v. United States, 523
U.S. 224, 226-27 (1998), held that the government need not allege in its
indictment, and need not prove beyond a reasonable doubt, that defendant had
5
Ford’s argument this Court should vacate his sentence based on the rule of lenity is
without merit. He identifies no ambiguity that would warrant the application of such a rule. See
United States v. Smith, 775 F.3d 1262, 12667 (11th Cir. 2014), cert. denied, 135 S. Ct. 2827(2015) (stating for the rule of lenity to apply to an advisory guideline definition pertinent to a
sentencing enhancement, the guideline’s text itself would have to be ambiguous). Further, as to
the Government’s reliance on Ford’s prior Florida felony battery conviction as an alternative
basis for affirming his career-offender designation, it is unnecessary for the Court to address this
issue. Only two predicate convictions are needed to qualify as a career offender, and Ford’s
delivery-of-cocaine and fleeing-or-eluding convictions qualified as predicates.
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prior convictions in order to use those convictions to enhance a sentence.
Almendarez-Torres forecloses Ford’s argument that his Sixth Amendment rights
were violated because his predicate convictions for his career-offender
enhancement were not charged in his indictment and proved to a jury.
Accordingly, Ford’s sentence was not procedurally unreasonable, and we
affirm. See Gall v. United States, 552 U.S. 38, 41 (2007) (reviewing the
reasonableness of a sentence for abuse of discretion).
AFFIRMED.
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