United States v. Jophaney Hyppolite

Case: 13-10471 Date Filed: 06/25/2015 Page: 1 of 37
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10471
________________________
D.C. Docket No. 2:11-cr-00097-JES-SPC-8
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOPHANEY HYPPOLITE,
a.k.a. Mike Larry,
a.k.a. Bo,
ERIC BONITA,
a.k.a. Black,
NEHEME DUCTANT,
a.k.a. Lucky,
a.k.a. Waldo,
WILMANE JEAN,
a.k.a. KK,
a.k.a. Kid,
a.k.a. Gumby,
RICK JEAN,
a.k.a. Slim,
a.k.a. Slick,
JUDE SEREME,
a.k.a. Poppie,
a.k.a. P-O,
Case: 13-10471 Date Filed: 06/25/2015 Page: 2 of 37
Defendants - Appellants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 25, 2015)
Before TJOFLAT, JILL PRYOR and FAY, Circuit Judges.
PER CURIAM:
Jophaney Hyppolite, Eric Bonita, Neheme Ductant, Wilmane Jean, Rick
Jean, and Jude Sereme appeal their convictions and sentences resulting from their
conspiracy to sell crack cocaine. We affirm their convictions and sentences,
except for a limited remand to resentence Sereme and to correct a clerical error in
Bonita’s sentence.
I. BACKGROUND
A. Defendants’ Crack-Cocaine Operation
Sereme and Michael Hester had worked together selling narcotics in
Oklahoma. Hester transported the drugs and served as a lookout for Sereme. In
2010, Sereme, his girlfriend, and Hester moved from Oklahoma to Fort Myers,
Florida. They occupied an apartment in the Buddyville area of Fort Myers.
Sereme, Hester, and Rick Jean sold crack cocaine from this Buddyville apartment.
Sereme purchased powder cocaine from Miami, which he used to produce and sell
2
Case: 13-10471 Date Filed: 06/25/2015 Page: 3 of 37
crack cocaine. Sereme and Hester subsequently moved into a residential trailer on
Capital Street in the Palmona Park neighborhood of North Fort Myers and began
selling crack cocaine there.
New apartments were opened for selling crack cocaine in the Buddyville
area. Michael Dupin sold crack cocaine from an apartment on Carmen Avenue;
Rick Jean sold crack cocaine from an apartment on Kimble Drive. Wilmane Jean,
Ductant, and Hyppolite sold crack cocaine from the Kimble Drive apartment. In
August 2010, an undercover officer purchased crack cocaine from Ductant at an
apartment on Breeze Drive; Hyppolite had sold crack cocaine from the same
apartment.
B. Official Investigation
The Florida Department of Law Enforcement and a Federal Bureau of
Investigation (“FBI”) task force had been conducting an ongoing investigation into
drug trafficking of the Haitian MOB, an organization that traffics illegal narcotics
from Miami, Florida, to Fort Myers, Florida. Various investigative techniques
were used by the agents and officers conducting the investigation, including
confidential informants and cell-site-location technology to trace the cellular
telephones of members of the drug-trafficking operation.
On December 7, 2010, the Florida Department of Law Enforcement applied
to a Lee County circuit judge and received authorization for cell-site activation
3
Case: 13-10471 Date Filed: 06/25/2015 Page: 4 of 37
locations for cellular telephone number 239-222-5448 (“target telephone”), with
service provided by Sprint. The authorized tracking of the target telephone,
believed to be used by Sereme, included installation of a pen-register device with
enhanced caller identification and a trap-and-trace device for the cellular telephone
number. The authorization also required Sprint to provide the longitude and
latitude (GPS) location at the request of the investigating agencies. Law
enforcement monitored and tracked the movement of the target telephone for
twelve days after receiving the court order allowing them to do so in accordance
with Fla. Stat. § 934.32.
On December 8, 2010, an investigating agent received cell-cite locations for
the target telephone. On December 9, 2010, surveillance was conducted on the
Linda Loma area of Fort Myers, because the information indicated Sereme was in
that area. Surveillance also showed a red Ford Edge, rented by Marie Pierre of
Miami, Florida, was located at 16860 Carmen Avenue.
On December 10, 2010, an FBI agent contacted the Florida Department of
Law Enforcement and advised the target telephone had been at a specified Wal-
mart in Fort Myers. The Walmart surveillance video showed Sereme getting into a
red Ford Edge that appeared to be the vehicle previously identified in the Linda
Loma subdivision. Contact with the car-rental agency revealed Marie Pierre had
returned the red Ford Edge and thereafter rented a silver Ford Edge.
4
Case: 13-10471 Date Filed: 06/25/2015 Page: 5 of 37
C. December 20, 2010, Traffic Stop
On December 20, 2010, Florida Law Enforcement was advised the target
telephone was traveling from Fort Myers to Miami. Later that night, the agent
learned the target telephone was returning to Fort Myers. Other law enforcement
officers were contacted in an effort to locate the vehicle containing the target
telephone to establish probable cause for a traffic stop of the occupants. With a
vehicle description and tag number, the sliver Ford Edge was identified at
approximately 8:30 p.m. This information was relayed to Lieutenant Hedrick and
Detective Kirkby. Lieutenant Hedrick located the suspect car and followed it for
approximately one mile and a half from Gladiolus Road to Bass Road in Fort
Myers.
The car was stopped by Lieutenant Hedrick near the intersection of
Summerlin Road and Bass Road in Fort Myers for speeding, since he had paced it
going 58 miles an hour in a 45 mile-per-hour zone, and illegal window tinting,
because he was unable to see the occupants or the front dashboard lights. The
general vicinity of the car was known through the use of cell-site-locator
information used to track the target telephone. As he approached the car,
Lieutenant Hedrick detected the odor of marijuana. Driver Johnny Pierre was
asked to step out of the car and patted down; he consented to search of the car.
Sereme was left in the car for at least two minutes, while Lieutenant Hedrick was
5
Case: 13-10471 Date Filed: 06/25/2015 Page: 6 of 37
the only officer at the scene. Pierre was with Lieutenant Hedrick, who was
questioning him at his patrol car. Pierre admitted he was speeding, because his
minor son in the back seat needed to use a restroom; Pierre also admitted he and
Sereme had been smoking marijuana in the car. Pierre said there might be a couple
of marijuana buds in the ashtray or a cup in the center console. The search of the
car, which lasted approximately 27 minutes, and a pat-down search of Sereme
revealed no contraband, except residual marijuana ground into the carpet of the
passenger compartment.
Lieutenant Hedrick had the car stopped approximately five minutes before
Detective Kirkby arrived; he also noticed a heavy smell of marijuana coming from
the car. Detective Kirkby talked with Sereme and asked for the rental agreement,
while recording his investigation with a video camera at the end of his flashlight.
He asked Sereme if he had anything on him; Sereme said he did not. Because no
contraband had been found in the car search and pat downs of the two occupants,
Detective Kirkby decided to conduct a further search of Sereme, a known cocaine
trafficker.
He approached Sereme, who was standing by the side of Lieutenant
Hedrick’s patrol car. Detective Kirkby then smelled marijuana coming from
Sereme, which confirmed a second search of Sereme, who was asked to put his
hands on the back of the patrol car. The location of the search was not visible from
6
Case: 13-10471 Date Filed: 06/25/2015 Page: 7 of 37
the roadway, because there were bushes and trees on one side and vehicles on the
other side. Detective Kirkby took care to conduct the search of Sereme out of sight
of the minor child.
During his exterior search of Sereme, Detective Kirkby had felt a protrusion
in Sereme’s buttocks area. Because Sereme was a large individual wearing tight
jeans, Detective Kirkby asked him to unbutton the front of his jeans and to pull
them down a little to enable him to search Sereme’s waistline area. Sereme
complied. Using his flashlight to search the front of Sereme’s jeans, Detective
Kirkby saw a white, powdery substance falling down between his legs. Detective
Kirkby then went behind Sereme and searched his buttocks area by pulling back
the waistband of his underwear, which revealed a plastic baggie protruding from
between Sereme’s buttocks. At that point, Detective Kirkby released the band of
Sereme’s underwear, handcuffed him, and read him his Miranda 1 rights.
Detective Kirkby then recovered the baggies from Sereme’s buttocks by
pulling out his waistband without exposing him to anyone. Although one baggie
fell down, Detective Kirkby had to pull out the other two. Following Sereme’s
arrest, he was placed in the Lee County Jail. Subsequent testing revealed the three
baggies contained 86 grams of cocaine.
D. Wire Intercepts and Confidential Informants
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
7
Case: 13-10471 Date Filed: 06/25/2015 Page: 8 of 37
In its investigation of the crack-cocaine conspiracy operating in Fort Myers,
the government obtained from the district judge Title III wiretap intercept orders
for telephones belonging to Rick Jean and Neheme Ductant. The probable cause to
support the applications to authorize interception of wire and electronic
communications was provided by three confidential informants as well as physical
surveillance, historical drug activity of the subject defendants and others, and
criminal history. 2 Information also was provided by intercepted jail calls between
Sereme and other members of the conspiracy after Sereme’s incarceration
following the traffic stop, where cocaine was found on him.
The Lee County Sheriff’s Department investigated the Capital Street trailer
distribution in July 2010. On three occasions, an informant purchased crack
cocaine there from Hester or Aland Genelas. Law enforcement obtained and
executed a search warrant for the trailer; Hester and Genelas were arrested.
Genelas called Sereme from jail to discuss the arrest and search of the trailer.
They also discussed their belief that law enforcement was working with
informants. While incarcerated, Sereme made several telephone calls concerning
the drug operation to Rick Jean, Wilmane Jean, Hyppolite, and Ductant. Over
2
An application for a wiretap must be supported by the same probable cause required for a
search warrant. United States v. Nixon, 918 F.2d 895, 900 (11th Cir. 1990). The probable cause
determination is a “practical, common-sense decision” as to whether the “totality of the
circumstances” indicate there is probable cause the evidence sought will be obtained. Id. The
information supporting probable cause should be sufficient enough for a determination the
particular telephone number is being used in furtherance of unlawful activity. United States v.
Domme, 753 F.2d 950, 954 n.2 (11th Cir. 1985).
8
Case: 13-10471 Date Filed: 06/25/2015 Page: 9 of 37
several months following Sereme’s arrest, an informant arranged and
consummated several crack-cocaine purchases with Rick Jean and Wilmane Jean.
In July 2011, an agent with the Fort Myers FBI obtained authorization to
intercept electronic and wire communications involving a telephone number he
believed Rick Jean had used. The affidavit in support of the application for
authorization to intercept these communications included descriptions of previous
drug activity by Sereme and his partners, information from several confidential
informants, as well as previous surreptitiously recorded conversations involving
Rick Jean. It also mentioned Sereme’s traffic stop, arrest, and subsequent jail
telephone calls.
Intercepted communications were conversations between Rick Jean and
other parties, including Hyppolite, Ductant, and Wilmane Jean, concerning selling
crack cocaine, money, and matters related to the crack-cocaine conspiracy. In
early August 2011, Rick Jean was arrested and found in possession of
approximately 27 grams of cocaine. In August 2011, authorization was obtained to
intercept communications involving another telephone number. Those calls
included communications concerning crack cocaine, money, and related matters
between Wilmane Jean, Ductant, Hyppolite, and other coconspirators.
On September 21, 2011, confidential source Beth Ann Torta participated in
the controlled purchase of crack cocaine. She purchased crack cocaine four times:
9
Case: 13-10471 Date Filed: 06/25/2015 Page: 10 of 37
twice from Dupin at the Carmen Avenue apartment and twice from Fritzco Desir at
an apartment on Linda Loma Drive. Desir, Sereme, Rick Jean, and others cooked
crack cocaine together, pooled resources to purchase powder cocaine in Miami,
and operated two distribution apartments on Linda Loma Drive.
Desir supplied crack cocaine for Bonita to sell. On September 27, 2011,
Torta made two more controlled purchases of crack cocaine: one from Bonita at
the Linda Loma Drive apartment and one from Hyppolite at the Kimble Drive
apartment. Torta was assured the crack cocaine from these two purchases had the
same origin.
In October 2011, law enforcement officers executed warrants on several
apartments associated with the defendants’ crack-cocaine production and sales.
They recovered evidence, including digital scales, a firearm, cash, crack cocaine,
and equipment for producing crack cocaine. Bonita was found at one of the Linda
Loma Drive apartments and taken into custody. Hyppolite was found at the
Kimble Drive apartment and arrested. Sereme, Wilmane Jean, and Ductant also
were arrested.
In September 2012, Hyppolite, Bonita, Ductant, Wilmane Jean, Rick Jean,
and Sereme were charged in a second-superseding, twelve-count indictment with
conspiracy to manufacture, possession with intent to distribute, and distribution of
280 grams or more of a substance containing cocaine base, in violation of 21
10
Case: 13-10471 Date Filed: 06/25/2015 Page: 11 of 37
U.S.C. § 846 (Count One), as well as a number of individual charges for
distribution or possession with intent to distribute cocaine or crack cocaine in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Counts Two-Twelve).
Following a jury trial, all defendants were convicted and sentenced to
imprisonment. 3 They raise various trial and sentencing issues on appeal.
II. DISCUSSION
A. Trial Issues4
3
Hyppolite was sentenced to a mandatory-minimum term of life imprisonment for Count One
and a concurrent 30-year-imprisonment term for Count Two; Bonita was sentenced to life
imprisonment for Count One and a concurrent 30-year-imprisonment term for Count Ten;
Ductant was sentenced to an imprisonment term of 292 months for Count One and a concurrent
imprisonment term of 240 months for Count Two; Wilmane Jean was sentenced to an
imprisonment term of 120 months for each of Counts One and Five to be served concurrently;
Rick Jean was sentenced to an imprisonment term of 240 months for each of Counts One, Five,
and Eight to be served concurrently; Sereme was sentenced to a mandatory-minimum term of life
imprisonment for Count One and a concurrent 30-year-imprisonment term for Count Three.
4
We address only the trial issues that warrant discussion. The following arguments raised by
defendants regarding trial issues are unavailing and do not merit further commentary, because
(1) the evidence was sufficient to establish a single conspiracy, see United States v. Richardson,
532 F.3d 1279, 1284-85 (11th Cir. 2008); (2) the district judge did not fail to instruct the jury on
multiple conspiracies; (3) the evidence was sufficient to establish the quantity of drugs at issue,
and the government did not need to show the particular quantity of drugs attributable to each
defendant for purposes of establishing a conspiracy, see United States v. Curbelo, 726 F.3d 1260,
1268-71 (11th Cir. 2013), cert. denied, __ U.S. __, 134 S. Ct. 962 (2014); (4) the judge did not
abuse his discretion in admitting transcripts of recordings of various conversations, including
recordings from jail conversations and during controlled purchases, see United States v. Green,
40 F.3d 1167, 1173 (11th Cir. 1994); (5) the judge did not commit plain error by failing to
provide relief based on the government's use of informants; (6) Bonita failed to show the denial
of his motion to sever resulted in specific and compelling prejudice adverse to his defense
resulting in fundamental unfairness, see United States v. Baker, 432 F.3d 1189, 1236 (11th Cir.
2005); (7) Bonita failed to establish the judge’s ruling he lacked standing to join in the motion
challenging the wiretaps deprived him of due process; (8) the judge did not err in denying
Bonita's motion for judgments of acquittal on Counts One and Ten, since the evidence was
sufficient to establish his involvement in the cocaine-base conspiracy and distribution; (9) the
judge did not plainly err or abuse his discretion in admitting Exhibit 35 into evidence, because
11
Case: 13-10471 Date Filed: 06/25/2015 Page: 12 of 37
1. Sereme’s Suppression Motion for Cocaine Found on Him
Sereme argues the district judge erred in denying his motion to suppress the
three baggies of cocaine Detective Kirkby recovered during the second search of
his person. He does not challenge the traffic stop, the police order to exit the car,
the search of the car, or his first pat-down search. But he argues the second search
of his person lacked adequate legal justification; even if a legal basis for the search
existed, he contends it exceeded the permissible scope of a personal search.
Consequently, he maintains the cocaine found on him should have been
suppressed, and his subsequent telephone calls made from jail should be
suppressed as derivative “‘fruit of the poisonous tree.’” Segura v. United States,
468 U.S. 796, 804, 104 S. Ct. 3380, 3385 (1984) (quoting Nardone v. United
States, 308 U.S. 338, 341, 60 S. Ct. 266, 268 (1939)).
“‘Because rulings on motions to suppress involve mixed questions of fact
and law, we review the district court’s factual findings for clear error, and its
application of the law to the facts de novo.’” United States v. Jordan, 635 F.3d
the government established the proper foundation for its admittance; (10) the judge did not abuse
his discretion in granting the government’s motion in limine, because permitting the questioning
of Detective Jennifer Torres regarding an incomplete investigation, of which she was unaware,
and which was unrelated to this case, could have provided only marginal evidence on an
unrelated matter and created a substantial risk of distracting the jury, as well as undermining an
ongoing investigation, see United States v. Lyons, 403 F.3d 1248, 1255 (11th Cir. 2005); (11) the
judge did not err in denying Rick Jean’s motions for judgments of acquittal, since the evidence
was sufficient to establish his guilt for conspiracy, the distribution of cocaine base, and the
possession of cocaine base with intent to distribute, and Rick Jean failed to demonstrate
confusion or misunderstanding on the part of the jury to justify relief.
12
Case: 13-10471 Date Filed: 06/25/2015 Page: 13 of 37
1181, 1185 (11th Cir. 2011) (quoting United States v. Bervaldi, 226 F.3d 1256,
1262 (11th Cir. 2000)). All facts are construed in the light most favorable to the
prevailing party. United States v. Smith, 741 F.3d 1211, 1218 (11th Cir. 2013),
cert. denied, __ U.S. __, 135 S. Ct. 704 (2014) (citing Jordan, 635 F.3d at 1185).
“We afford substantial deference to the factfinder’s credibility determinations, both
explicit and implicit.” United States v. Lewis, 674 F.3d 1298, 1303 (11th Cir.
2012) (citing United States v. McPhee, 336 F.3d 1269, 1275 (11th Cir. 2003)).
Detective Kirkby had probable cause to search Sereme’s person for several
reasons. Probable cause is an objectively reasonable standard under the totality of
circumstances, which “is met when the facts and circumstances within the officer’s
knowledge, of which he or she has reasonably trustworthy information, would
cause a prudent person to believe, under the circumstances shown, that the suspect
has committed, is committing, or is about to commit an offense.” Rankin v. Evans,
133 F.3d 1425, 1435 (11th Cir. 1998) (citation and internal quotation marks
omitted). “Observations and other information supplied by officers involved in a
common investigation can, taken together, create probable cause for a search.”
United States v. Goddard, 312 F.3d 1360, 1363 (11th Cir. 2002) (citing United
States v. Kirk, 781 F.2d 1498, 1505 (11th Cir. 1986)).
Lieutenant Hedrick’s stopping the car in which Sereme was riding was not
a routine or random traffic stop. For months preceding Sereme’s arrest for
13
Case: 13-10471 Date Filed: 06/25/2015 Page: 14 of 37
possession of cocaine, the Lee County Sheriff’s Department had been investigating
the Fort Myers crack-cocaine-conspiracy participants in which Sereme was a
known participant. The officers specifically had been conducting surveillance on
Sereme’s target telephone pursuant to court authorization to track it and knew it
was in that car.
From their collective knowledge, the investigating officers knew the car
stopped by Lieutenant Hedrick the night of December 20, 2010, had returned from
a round trip to Miami, the source of cocaine used by the conspiracy to make crack
cocaine for sale in Fort Myers, and was traveling toward the Linda Loma
neighborhood, one of the areas, where the crack-cocaine conspiracy operated.
Consequently, they had reason to believe cocaine would be found in the car or on
the occupants. When pat downs of the two adult occupants and search of the car
had revealed no cocaine, Detective Kirkby needed to ascertain whether Sereme, a
known cocaine dealer in Fort Myers, had cocaine on his person. When “there is a
fair probability that contraband or evidence of a crime will be found in a particular
place” under the totality of circumstances, probable cause for a search exists.
Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983).
In addition, it is well settled a vehicle may be stopped under the Fourth
Amendment, when an officer has “probable cause to believe that a traffic violation
[has] occurred.” United States v. Simmons, 172 F.3d 775, 778 (11th Cir. 1999);
14
Case: 13-10471 Date Filed: 06/25/2015 Page: 15 of 37
see United States v. Strickland, 902 F.2d 937, 940 (11th Cir. 1990) (holding “a
police officer may stop a vehicle ‘when there is probable cause to believe that a
driver is violating any one of the multitude of applicable traffic and equipment
regulations’ relating to the operation of motor vehicles” (quoting Delaware v.
Prouse, 440 U.S. 648, 661, 99 S. Ct. 1391, 1400 (1979) (alteration and ellipsis
omitted)). In this case, probable cause existed, when the car under surveillance by
the Lee County Sherriff’s Department was stopped, because of two obvious and
admitted traffic violations: speeding and illegally tinted windows. 5
Both Lieutenant Hedrick and Detective Kirkby smelled a strong odor of
marijuana coming from the car. We have held “the recognizable smell of
marijuana gives rise to probable cause supporting a warrantless search.” United
States v. Lueck, 678 F.2d 895, 903 (11th Cir. 1982); see United States v. Tobin,
923 F.2d 1506, 1512 (11th Cir. 1991) (en banc) (“There is no doubt that the
agent’s suspicions rose to the level of probable cause when, as the door stood open,
he detected what he knew from his law enforcement experience to be the odor of
marijuana.”). Consequently, Detective Kirkby also had probable cause to perform
a warrantless search of Sereme’s person, based on the strong odor of marijuana
emanating from him that indicated the presence or possession of contraband.
5
We have recognized a traffic stop was supported by probable cause, where an officer believed
the window tinting of a vehicle was in violation of Florida legal limits. United States v. Weaver,
145 Fed. Appx. 639, 641 (11th Cir. 2005) (citing Fla. Stat. § 316.2953) (unpublished but cited
for persuasive value).
15
Case: 13-10471 Date Filed: 06/25/2015 Page: 16 of 37
Furthermore, “the Fourth Amendment permits warrantless arrests in public
places where an officer has probable cause to believe that a felony has occurred.”
Florida v. White, 526 U.S. 559, 565, 119 S. Ct. 1555, 1559 (1999); see United
States v. Watson, 423 U.S. 411, 416-17, 96 S. Ct. 820, 824 (1976) (noting “there is
nothing in the Court’s prior cases indicating that under the Fourth Amendment a
warrant is required to make a valid arrest for a felony”). The Watson Court
explained, when the judgment of Congress “has for so long been to authorize
warrantless public arrests on probable cause rather than to encumber criminal
prosecutions with endless litigation with respect to the existence of exigent
circumstances, whether it was practicable to get a warrant, whether the suspect was
about to flee, and the like.” 423 U.S. at 423-24, 96 S. Ct. at 828; see Gates, 462
U.S. at 243 n.13, 103 S. Ct. at 2335 n.13 (“[P]robable cause requires only a
probability or substantial chance of criminal activity, not an actual showing of such
activity.”); United States v. Childs, 277 F.3d 947, 953 (7th Cir. 2002) (en banc)
(recognizing “traffic stops supported by probable cause are arrests, with all the
implications that follow from probable cause to believe that an offense has been
committed” (citing Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769 (1996)).
The Seventh Circuit recognized “[the defendant] was placed in custody by the stop
of the car in which he was a passenger”; “a person stopped on probable cause may
be searched fully.” Childs, 277 F.3d at 952. Under the circumstances, Detective
16
Case: 13-10471 Date Filed: 06/25/2015 Page: 17 of 37
Kirkby had probable cause to search Sereme on a public roadside to preserve any
drugs that may have been secreted on his person, which could have disappeared in
transporting him to the station. This may explain the disappearance of the
marijuana smoked in the car, which apparently occurred during the time Sereme
was left alone in the car before Detective Kirkby arrived.
Because the Lee County Sherriff’s Department had focused its investigation
on the extensive Fort Myers crack-cocaine conspiracy and Sereme’s predominant
participation in it, obvious traffic violations for the car being monitored for use by
the crack-cocaine conspiracy, and the unmistakable smell of marijuana emanating
from the car and Sereme, Detective Kirkby had ample probable cause to perform a
full search of Sereme’s person. 6 During his search of Sereme, Detective Kirkby
found three baggies of cocaine that had been secreted in Sereme’s buttocks. The
district judge correctly denied Sereme’s motion to suppress the cocaine found on
him. Consequently, we need not address his derivative argument that his telephone
calls made from jail were fruit of the poisonous tree.
6
To the extent Sereme represents he was subjected to a strip search, the video evidence of his
second search shows he was not disrobed. See Black’s Law Dictionary (10th ed. 2014) (defining
“strip search” as “[a] search of a suspect whose clothes have been removed, the purpose usu.
being to find any contraband the person might be hiding”). Sereme’s jeans were not dropped as
far as his knees. In her Report and Recommendation (“R&R”), adopted by the district judge, the
magistrate judge noted: “Sereme was never asked to remove all of his clothing and he only
briefly had his underwear pulled back after Det. Kirkby had seen white powder falling between
his legs.” R & R, Doc. 189 at 24. Id. Sereme was a known cocaine dealer in Fort Myers.
Detective Kirkby’s feeling something protruding from Sereme’s buttocks area, and his
knowledge from his experience that drug traffickers often hide cocaine baggies in their buttocks
augmented his existing probable cause to search Sereme’s person, but it was not a strip search.
17
Case: 13-10471 Date Filed: 06/25/2015 Page: 18 of 37
2. Ductant’s Motion to Suppress Wiretap Evidence
Ductant argues the district judge erred in denying his motion to suppress the
interception of wire communications, because the government failed to meet its
burden of establishing the necessity for the wiretaps. 7 “A district court’s findings
of fact in resolving a motion to suppress are reviewed for clear error; the court’s
application of the law to those facts is reviewed de novo.” United States v.
Gordon, 231 F.3d 750, 753–54 (11th Cir. 2000). In considering the district judge’s
ruling, we construe the facts in the light most favorable to the prevailing party. Id.
at 754.
Each application for a wiretap must include “a full and complete statement
as to whether or not other investigative procedures have been tried and failed or
why they reasonably appear to be unlikely to succeed if tried or to be too
dangerous.” 18 U.S.C. § 2518(1)(c). “Based on the application, the district court
may grant an ex parte order if it determines that ‘normal investigative procedures
have been tried and have failed or reasonably appear to be unlikely to succeed if
tried or to be too dangerous . . . .’” United States v. Alonso, 740 F.2d 862, 867–68
(11th Cir. 1984) (citing 18 U.S.C. § 2518(3)(c)). “The necessity requirement is
designed to ensure that electronic surveillance is neither routinely employed nor
7
Rick Jean and Sereme adopted Ductant’s argument challenging the district judge’s denial of
Ductant’s motion to suppress the wiretap evidence.
18
Case: 13-10471 Date Filed: 06/25/2015 Page: 19 of 37
used when less intrusive techniques will succeed.” United States v. Van Horn, 789
F.2d 1492, 1496 (11th Cir. 1986).
The government, however, need not show “a comprehensive exhaustion of
all possible techniques.” Id. Section 2518 was not intended “to foreclose
electronic surveillance until every other imaginable method of investigation has
been unsuccessfully attempted, but simply to inform the issuing judge of the
difficulties involved in the use of conventional techniques.” Alonso, 740 F.2d at
868 (quoting United States v. Hyde, 574 F.2d 856, 867 (5th Cir. 1978)). 8 “The
partial success of alternative investigative measures . . . does not necessarily render
electronic surveillance unnecessary.” United States v. Perez, 661 F.3d 568, 581
(11th Cir. 2011). Electronic surveillance may be used if the government can
“show why alternative measures are inadequate for ‘this particular investigation.’”
Id. (quoting United States v. Carrazana, 921 F.2d 1557, 1565 (11th Cir. 1991)).
In this case, the district judge adopted the magistrate judge’s Report and
Recommendation in full and denied Ductant’s suppression motion. The magistrate
judge recommended finding the application for the wiretap demonstrated the need
for electronic surveillance. This recommendation was based on hearing testimony
and affidavits recounting the limitations on the government’s use of conventional
8
The Eleventh Circuit adopted as precedent decisions of the former Fifth Circuit rendered prior
to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
19
Case: 13-10471 Date Filed: 06/25/2015 Page: 20 of 37
investigative techniques, because it was unlikely these conventional techniques
would be helpful in the future.
Significantly, the government’s use of confidential informants was limited
by the defendants’ suspicion that the informants were working with law
enforcement. Any information obtained by the informants was predominantly
historical and did not provide insight into who was supplying the cocaine, how the
proceeds were divided, or how shipments were transported. Other techniques,
such as physical surveillance and pole cameras, would not have revealed activities
taking place inside the apartments the defendants frequented. Without the use of
electronic surveillance, law enforcement would have been unable to ascertain the
relationships between the defendants and their roles within the conspiracy.
Consequently, the district judge properly determined the government had
established necessity.
3. Bonita’s Alleged Sixth Amendment Violation for Juror Dismissal
Bonita contends dismissal of Juror 8 deprived him of his Sixth Amendment
right to a fair trial. “We review a district court’s decision to strike a prospective
juror for cause for abuse of discretion.” United States v. Brown, 441 F.3d 1330,
1356 (11th Cir. 2006).
During trial, Juror 8 wrote a note to the judge explaining she recognized two
witnesses as patients in the hospital where she worked. In the presence of the
20
Case: 13-10471 Date Filed: 06/25/2015 Page: 21 of 37
parties, the judge questioned Juror 8, who stated she knew about the mental
capacity and prescription-medication history of the two witnesses. To determine
what sensitive information she knew, the judge interviewed Juror 8 in camera.
Bonita takes issue with the district judge’s decision to interview Juror 8 in
camera and his determination Juror 8 was unable to serve as an impartial juror. 9
Bonita characterized the discussion concerning the judge’s in camera interview:
“the District Court Judge was invited to obtain factual information, presumably to
be shared with counsel, so that the determination by all concerned could be made
as to whether a juror strike for cause” was appropriate. Bonita Reply Br. at 4. He
submits there was an implicit understanding the transcripts of that interview would
be shared; however, the record reveals no reason to infer such an agreement
existed.
Bonita expressly agreed the district judge should interview Juror 8 in
camera. ROA at 3646. He joined Ductant and requested that the judge interview
the juror in camera to ensure there would be no HIPAA 10 violation. Ductant
suggested the judge compare what already was available in discovery to what the
juror would reveal. The implication, if any, was the judge would be the sole
9
Ductant adopted Bonita’s arguments concerning the dismissal of Juror 8.
10
One component of HIPAA, the Health Insurance Portability and Accountability Act of 1996, is
the preservation of patient privacy by prohibiting the transfer or communication of protected
medical information without consent of the patient.
21
Case: 13-10471 Date Filed: 06/25/2015 Page: 22 of 37
recipient of any additional information Juror 8 presented. The judge, however,
made clear he would not share the transcripts of his in camera interview with Juror
8. We find no error in the district judge’s conduct. 11
Bonita also contends Juror 8 provided adequate assurances she would be
able to carry out her duties as a juror impartially. Juror 8’s initial note to the judge
stated she “[did] not think” her prior knowledge would “influence [her] ability to
weigh” the evidence. ROA at 3636. When questioned, Juror 8 revealed,
regardless of the actual evidence presented, witness testimony consistent with her
prior knowledge would make her more likely to believe the witness in other
matters, and testimony contrary to her prior knowledge would lead her to assume
that witness was untruthful regarding other matters. ROA at 3639-41. This
inability to separate her prior knowledge from the facts presented provided
adequate grounds to determine she would be unable to perform her duties. See
United States v. Martin, 749 F.2d 1514, 1518 (11th Cir. 1985) (finding a juror was
unfit to serve, when her “expressions of ability to abide by the evidence presented
in court were at most qualified”); cf. United States v. Rhodes, 177 F.3d 963, 966
(11th Cir. 1999) (determining juror fit to serve despite concerns about her capacity
to evaluate the truthfulness of a witness, when she “demonstrated that those [prior]
11
If error were to exist, it was invited, and “it is ‘a cardinal rule of appellate review that a party
may not challenge as error a ruling or other trial proceeding invited by that party.’” United
States v. Ross, 131 F.3d 970, 988 (11th Cir. 1997) (quoting Crockett v. Uniroyal, Inc., 772 F.2d
1524, 1530 n.4 (11th Cir. 1985)).
22
Case: 13-10471 Date Filed: 06/25/2015 Page: 23 of 37
notions would not prevent her from deciding the case solely based on the evidence
presented in court” and could ensure any bias was left outside the courtroom).
Juror 8 expressed at best a qualified capacity to evaluate the case on the
evidence presented and possessed a stated inability to leave her biases outside the
courtroom. The district judge correctly determined Juror 8 would be unable to
serve as an impartial juror. The dismissal of Juror 8 was not an abuse of the
judge’s discretion and did not affect Bonita’s rights adversely.
B. Sentencing Issues
1. Adequacy of Government’s Notice to Enhance Sereme’s Sentence
Sereme was sentenced to a mandatory-minimum term of life imprisonment
on Count One and a concurrent maximum-imprisonment term of 30 years on
Count Three. He argues the government failed to comply with the strict notice
requirements of 21 U.S.C. § 851 for enhancing his sentence to life imprisonment
under 21 U.S.C. § 841(b)(1)(A)(iii). He contends the government’s timely notice
was defective, because it did not list the convictions on which the government
intended to rely in enhancing his sentence. He also argues the government’s
amended notice was untimely, because it did not seek to amend a clerical error.
“We review the adequacy of a section 851 notice de novo.” United States v.
Ramirez, 501 F.3d 1237, 1239 (11th Cir. 2007). This notice requirement is
jurisdictional; absent strict compliance by the government, the district judge may
23
Case: 13-10471 Date Filed: 06/25/2015 Page: 24 of 37
not impose the enhanced sentence. Id. (citing United States v. Thompson, 473
F.3d 1137, 1144 (11th Cir. 2006)). Section 851(a)(1) provides, in relevant part:
No person who stands convicted of an offense under this part shall be
sentenced to increased punishment by reason of one or more prior
convictions, unless before trial, or before entry of a plea of guilty, the
United States attorney files an information with the court (and serves
a copy of such information on the person or counsel for the person)
stating in writing the previous convictions to be relied upon.
21 U.S.C. § 851(a)(1) (emphasis added). This notice “allow[s] the defendant to
contest the accuracy of the information” and enables the “defendant to have ample
time to determine whether to enter a plea or go to trial and plan his trial strategy
with full knowledge of the consequences of a potential guilty verdict.” United
States v. Williams, 59 F.3d 1180, 1185 (11th Cir. 1995).
Prior to trial, the government filed three notices of intent to use Sereme’s
prior convictions to enhance his penalty in this case. In a sentencing memorandum
and at sentencing, Sereme’s counsel argued his 2009 Oklahoma conviction should
be considered part of the same conspiracy and conduct underlying this conviction;
therefore, it was inapplicable for enhancement purposes. He contended the second
superseding indictment referred to a drug conspiracy which began on or about
2009, thereby overlapping his 2009 Oklahoma conviction.
Sereme’s counsel further argued the government’s notice of intent to use
prior convictions was defective. He contended the 2009 Oklahoma offense
initially was for possession of a controlled substance with intent to distribute but
24
Case: 13-10471 Date Filed: 06/25/2015 Page: 25 of 37
later was amended to possession of a controlled drug. Since the notice of intent
filed by the government listed a conviction for possession with intent to distribute a
controlled drug, defense counsel argued the notice was defective, because it did not
show the amendment to simple possession of a controlled drug. The district judge
determined the 2009 Oklahoma conviction was unrelated to this case and was
eligible to be considered under § 851, because it involved marijuana rather than
cocaine.
In April 2013, the government filed an amended notice of intent to use prior
convictions to enhance Sereme’s penalties. It noted several errors found in the
2009 Oklahoma judgment. These errors included the description of the crime, the
relevant statutory sections, as well as a clerical error listing marijuana as the
relevant controlled substance, rather than cocaine base. This discovery is
supported by Sereme’s suspended-felony sentence of four years, since mere
possession of marijuana, the stated conviction in the original sentencing judgment,
is not a felony in Oklahoma. See Okla. Stat. Ann. tit. 63, § 2-402 (B)(2) (1971).
Because of these findings, the Oklahoma court entered an amended judgment,
which changed the crime of conviction, the statutory section of the crime, and the
date of conviction. The additional findings were amended to correct the enhancing
information from marijuana to cocaine base.
25
Case: 13-10471 Date Filed: 06/25/2015 Page: 26 of 37
The government sought to amend its notice of intent to reflect these changes.
Because the prior convictions were felony-drug crimes, the government argued
Sereme was eligible for enhanced penalties under Counts One and Three. Sereme
objected to the third-amended notice of intent and contended it was untimely,
because it was not filed before trial as required by § 851, and he was not given an
opportunity to dispute the accuracy of the judgments.
At the second sentencing proceeding, the district judge expressed two
reservations regarding the third-amended complaint: (1) whether the 2009
Oklahoma judgment was final, and (2) whether Sereme’s corrected 2009
Oklahoma judgment rendered the notice of intent untimely. The government
argued the clerical errors in the 2009 Oklahoma judgment did not change the
nature of the crime for the underlying purposes relevant to a § 851 enhancement,
and the amended notice was filed to correct those clerical errors. Because of the
errors in the original Oklahoma judgment, Sereme’s counsel argued the
government could not have known of the crime of conviction, when the first and
second notices of intent were filed, since the amended judgment had not been
entered. Therefore, the government could not ask Sereme to account for a
judgment that had been entered days before, well after the filing of the first and
second notice, without prejudicially affecting his rights.
26
Case: 13-10471 Date Filed: 06/25/2015 Page: 27 of 37
The district judge determined the government’s § 851 notice was both timely
and complied with the demands of due process. Under Oklahoma law, he
determined the amendments made to Sereme’s 2009 Oklahoma conviction were
clerical, done merely to reflect the actual judgment entered against him and did not
amount to substantive changes to the judgment. Alternatively, the judge found,
even if the amended notice of intent was defective, the existing notices of intent
were sufficient despite their inaccuracies. He concluded the original inaccurate
notices gave Sereme sufficient information to contest the accuracy of the former
convictions and had notified him the government intended to use those prior
convictions as the basis for an enhanced penalty.
At final sentencing, the judge proceeded with these factual and legal
conclusions. The Sentencing Guidelines range for Sereme’s crimes was 360-
months-to-life imprisonment, but using the statutory enhancement changed the
applicable Guidelines to a minimum of life imprisonment under Count One and
300 months of imprisonment under Count Three. The judge sentenced Sereme to
life imprisonment for Count One and 300 months for Count Three, to run
concurrently. On appeal, Sereme’s counsel contends the government’s notices of
intent failed to comply with the notice requirements of § 851. He argues Sereme
had no reason to contest inaccuracies in the first or second notice of intent, since
their accuracy is not his burden. Significantly, while § 851 permits the correction
27
Case: 13-10471 Date Filed: 06/25/2015 Page: 28 of 37
of clerical errors in the notice, it is silent concerning clerical errors in the
underlying judgment. Because the government sought to base Sereme’s enhanced
penalties on a judgment that was not entered until after trial and sentencing had
commenced, whatever notice was provided failed to comply with the demands of §
851.
We have addressed whether a defendant’s knowledge of the convictions
against him is sufficient to cure defects in the government’s notice under § 851.
United States v. Rutherford, 175 F.3d 899 (11th Cir. 1999). In Rutherford, the
government failed to list any prior convictions in its pretrial enhancement motion.
Id. at 903. The government argued a contemporaneously filed notice of intent to
introduce evidence of prior convictions at trial and a later discovery response that
included the relevant convictions cured that defect. Id. We disagreed and noted:
“Most defendants know of their own convictions. If that knowledge alone was
sufficient to trigger the enhancement procedure, no kind of notice intended by
Congress would have been required.” Id. at 904. Obligating a defendant to
compile the relevant information is “inconsistent with strict compliance.” Id. We
have held, however, that notice is sufficient where the error is merely clerical.
Perez v. United States, 249 F.3d 1261, 1266-67 (11th Cir. 2001).
When provided the information contained in the government’s notices of
intent, we must determine whether Sereme could have investigated those crimes,
28
Case: 13-10471 Date Filed: 06/25/2015 Page: 29 of 37
prepared for trial knowing the government intended to use the crimes against him,
or contested the accuracy of the crimes, or whether the notice provided
“unambiguously signaled the government’s intent to rely upon a specific prior . . .
conviction.” Id. at 1266. In this case, Sereme’s counsel would have been unable to
find that information, because the notice provided failed to signal specific prior
convictions on which it relied.12 Those convictions were not identifiable until an
amended judgment was entered in Oklahoma, after Sereme was convicted of this
crack-cocaine conspiracy. Instead of admitting to actual notice, Sereme alleges
confusion about the nature of the conviction, which was shared by the district
judge at sentencing: “The Court is not satisfied that the record at this point
accurately establishes the convictions for which defendant was convicted in
Oklahoma.” ROA at 5988.
In addition, the lack of clarity concerning the crimes with which Sereme had
been charged in Oklahoma, which persisted to sentencing, shows the inadequacy of
the notice provided by the government. Sereme’s knowledge he had been charged
with a drug crime in Oklahoma, and his use of that knowledge at the various stages
of the trial, does not alleviate the government’s burden to comply with the strict
12
Without reaching the question of whether Sereme’s conviction in Oklahoma was final, we note
the amendments entered by the Oklahoma court included a change to the crime of conviction, the
applicable statutory section, and the date of conviction. ROA at 6004-11.
29
Case: 13-10471 Date Filed: 06/25/2015 Page: 30 of 37
notice requirements of § 851.13 Sereme may not have had reason to investigate or
challenge the crimes listed in the government’s initial notices, because the crime
charged, possession of marijuana, is not a felony in Oklahoma. The government’s
notices of intent were accurate as to case number and jurisdiction but inaccurate
and thereby defective regarding the substantive nature of the crimes.
Therefore, the government failed to satisfy the notice requirements of § 851,
which precluded the district judge from imposing a mandatory-life sentence of
imprisonment under 21 U.S.C §§ 841(b)(1)(A)(iii) and 851. The judge erred in
finding the government’s notices of intent to enhance Sereme’s sentence were
timely and compliant with the requirements of § 851. We vacate and remand for
resentencing, because the judge lacked authority to enhance Sereme’s sentence
under § 841.
2. Adequacy of Government’s Notice to Enhance Hyppolite’s Sentence
13
Cf. United States v. Steen, 55 F.3d 1022, 1025 (5th Cir. 1995). In Steen, the Fifth Circuit had
to determine whether the government’s notice was defective when, in addition to clerical errors,
it misstated the nature of the crime with which the defendant had been charged, confusing
possession and delivery of a controlled substance. Id. In that case, the court observed
“[p]ractical rather than technical considerations govern” the question of whether notice was
sufficient. Id. at 1026 (quoting United States v. Chappell, 6 F.3d 1095, 1099 (5th Cir. 1993)).
The Fifth Circuit determined, where the defendant “admitted that he had notice of the prior
convictions before trial, and that the incorrect description of [his conviction] did not mislead
him,” notice was sufficient. Id. at 1028. Steen presents a different result than we reach in this
case, but the reasoning is consistent. Importantly, the primary issue in Steen was one of
misidentification by the government, but the underlying crime remained the same. In this case,
the crime for which the government sought to provide notice and the crime, which ultimately
was used to enhance Sereme’s sentence, were substantially different. The errors in the notice of
intent in this case could have misled Sereme.
30
Case: 13-10471 Date Filed: 06/25/2015 Page: 31 of 37
Hyppolite was sentenced to a mandatory-minimum term of life
imprisonment for Count One and a concurrent 30-year term of imprisonment for
Count Two. He contends (1) the government’s § 851 notice was defective,
misleading, and unconstitutional, and (2) the record does not show he was served
with § 851 notice. Hyppolite also argues the district judge clearly erred in
imposing a two-level enhancement for maintaining a premises for the manufacture
or distribution of controlled substances under U.S.S.G. § 2B1.1(b)(12) and a three-
level role enhancement for being a manager or supervisor of criminal activity
under § 3B1.1(b).
We review de novo the adequacy of § 851 notice, Ramirez, 501 F.3d at
1239, and the legality of a criminal sentence, United States v. Prouty, 303 F.3d
1249, 1251 (11th Cir. 2002). We apply de novo review “when determining
whether a defendant’s sentence violated Apprendi 14 by exceeding the prescribed
statutory maximum.” United States v. Candelario, 240 F.3d 1300, 1306 (11th Cir.
2001). Apprendi established that “[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000).
14
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).
31
Case: 13-10471 Date Filed: 06/25/2015 Page: 32 of 37
Unlike the circumstances surrounding his coconspirator, Sereme, the errors
in the government’s notice of intent concerning Hyppolite and the proceedings
surrounding the convictions referenced in the notice do not so frustrate the purpose
behind the notice requirement that it amounts to insufficient notice. See Ramirez,
501 F.3d at 1239. The notice signaled the government’s intent to use particular
convictions, correctly identified by case number, date of conviction, and type of
crime, which enabled Hyppolite to plan his defense regarding those convictions.
Id. The minor errors in the notice—listing an incorrect county and circuit court
where a conviction occurred—did not prevent Hyppolite from knowing which
convictions were concerned so he could contest the use of them. See Perez, 249
F.3d at 1265; see also discussion supra Part II.B.1. The district judge did not err in
determining the government’s § 851 notice was adequate.
Hyppolite’s other arguments are reviewed for plain error, because he raises
them for the first time on appeal. United States v. Vallejo, 297 F.3d 1154, 1164
(11th Cir. 2002). To demonstrate plain error, Hyppolite must show an error that
was plain impacted his substantial rights and seriously affected the fairness of the
judicial proceedings. United States v. Schultz, 565 F.3d 1353, 1356-57 (11th Cir.
2009). “An error is not plain unless it is contrary to explicit statutory provisions or
to on-point precedent in this Court or the Supreme Court.” Id. at 1357 (citing
United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003)). For the
32
Case: 13-10471 Date Filed: 06/25/2015 Page: 33 of 37
first time on appeal, Hyppolite argues the record is silent regarding whether he was
served with § 851 notice, but he fails to cite any binding authority establishing
service must occur. Moreover, the record shows the government filed notice
electronically in compliance with the applicable local rules. See M.D. Fla. R.
1.01(a); M.D. Fla. Admin. Proc. I(A), I(D)(1).
Hyppolite contends the district judge erred by failing to advise him he was
facing a mandatory-life-imprisonment sentence, and the judge should have
submitted his prior convictions and the drug quantities at issue to the jury.
Hyppolite’s unpreserved attacks on his conviction and sentence fail under the
plain-error standard, because he neither cites any binding case law nor states errors
that affect his substantive rights. Schultz, 565 F.3d at 1357 (noting error is not
plain unless it is contrary to explicit statutory provisions or binding precedent); see
United States v. McKinley, 732 F.3d 1291, 1297 (11th Cir. 2013) (recognizing,
even if error is plain, a defendant may not be entitled to relief if the evidence of a
statutory element of an crime is “overwhelming and uncontroverted,” as in this
case).
Hyppolite’s counsel argues the district judge erred in imposing a two-level
enhancement for maintaining a premises for the manufacturing and distribution of
a controlled substance under U.S.S.G. § 2B1.1(b)(2). He alleges the judge erred in
assigning a three-level enhancement for being a manager of criminal activity under
33
Case: 13-10471 Date Filed: 06/25/2015 Page: 34 of 37
§ 3B1.1(b). But Hyppolite abandoned these issues on appeal. His brief recitation
of facts and the absence of cited authority do not suffice to preserve the issue. “We
have long held that an appellant abandons a claim when he either makes only
passing references to it or raises it in a perfunctory manner without supporting
arguments and authority.” Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678,
681 (11th Cir. 2014); see also Singh v. U.S. Att'y Gen., 561 F.3d 1275, 1278 (11th
Cir. 2009) (determining appellant’s arguments must contain “citations to the
authorities and parts of the record on which the appellant relies,” and “simply
stating that an issue exists, without further argument or discussion, constitutes
abandonment of that issue and precludes our considering the issue on appeal”).
“[W]e review the district court’s factual findings for clear error, we review
de novo its application of the law to those facts, including its interpretation and
application of the U.S. Sentencing Guidelines.” United States v. Johnson, 694
F.3d 1192, 1195 (11th Cir. 2012). The government presented evidence Hyppolite
spent substantial time at and exercised control over an apartment used for the
manufacture and distribution of crack cocaine. It also presented evidence
Hyppolite supervised at least one participant in the conspiracy. Any possible error
was harmless, because Hyppolite’s base-offense level would have been the same
with his career-offender enhancement and would have resulted in a mandatory-
minimum-life-imprisonment sentence.
34
Case: 13-10471 Date Filed: 06/25/2015 Page: 35 of 37
3. Bonita’s Challenge to His Life-Imprisonment Sentence
Bonita argues the district judge erred in sentencing him to a mandatory-
minimum term of life imprisonment. 15 He contends the judge’s oral
pronouncement of a mandatory-life sentence, referencing § 841 (b)(1)(C), conflicts
with the written sentence, citing § 841(b)(1)(A)(iii), and exposes the judge’s intent
to sentence him under 21 U.S.C. § 841 (b)(1)(C), which provides a maximum-
imprisonment sentence of 30 years, not life imprisonment. Bonita alleges the
judge’s imposing 10 years of supervised release further evidences this intent and
error in his sentencing judgment.
“Where there is a discrepancy between the orally imposed sentence and the
written order of judgment and committal, the oral sentence controls.” United
States v. Khoury, 901 F.2d 975, 977 (11th Cir. 1990). “If the oral sentence is
ambiguous, then, in an attempt to discern the intent of the district court at the time
it imposed sentence, the reviewing court may consider extrinsic evidence,
15
In Bonita’s presentence investigation report, the probation office assessed his base-offense
level to be 34 under U.S.S.G. § 2D1.1(c)(3) for his involvement with at least 840 grams but less
than 2.8 kilograms of cocaine base, plus two levels under U.S.S.G. § 2D1.1(b)(1) for possession
of a dangerous weapon, for a total offense level of 36. At sentencing, the judge reduced Bonita’s
base-offense level to 32, because of his involvement with more than 280 grams but less than 840
grams of crack cocaine. As a career offender, however, Bonita had a total-enhanced-offense
level of 37. With a criminal history category of VI, Bonita had a Sentencing Guidelines range of
360 months to life imprisonment. Because the government had filed a timely notice under 21
U.S.C. § 851, Bonita confronted a mandatory-life sentence on Count One, which supplanted his
otherwise-applicable Guidelines range. See U.S.S.G. § 5G1.1(b); 21 U.S.C. § 841(b)(1)(A)(iii).
His sentence on Count Ten was capped at a 30-year statutory maximum. See 21 U.S.C. §§
841(b)(1)(C), 851.
35
Case: 13-10471 Date Filed: 06/25/2015 Page: 36 of 37
including the commitment order.” Id. “The district court is master of a sentence;
the district court’s intention controls.” United States v. Kindrick, 576 F.2d 675, 677
(5th Cir. 1978).
Bonita correctly notes a discrepancy in the district judge’s oral sentencing
and the sentencing judgment. But this inconsistency resolves in favor of the
judge’s intent to sentence him to life imprisonment under § 841(b)(1)(A)(iii). A
sentence under § 841(b)(1)(A)(iii) comports with the written judgment, and the
district judge made clear at the commencement of the sentencing proceeding that
Bonita had been found guilty on Count One in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(iii), and 851. The government provided adequate notice showing its
intent to seek an enhanced sentence, and the judge found Bonita had been
convicted of two prior qualifying crimes. Even if we found this conflict created
such ambiguity that it resisted interpretation, the oral pronouncement could not
control, because imposing a life-imprisonment sentence under § 841(b)(1)(C)
directly conflicts with the law. See United States v. Joseph, 743 F.3d 1350, 1353
(11th Cir. 2014).
The judge correctly stated at the beginning of the sentencing proceeding the
provision under which Bonita was being charged, carefully evaluated the prior
crimes serving to enhance Bonita’s sentence, sentenced Bonita to the correct term
of life imprisonment after those enhancements, and recognized that this sentence
36
Case: 13-10471 Date Filed: 06/25/2015 Page: 37 of 37
was required under § 841(b)(1)(A)(iii). These factors evidence a clear intent to
sentence Bonita to life imprisonment under § 841(b)(1)(A)(iii). We remand for the
limited purpose of correcting the written judgment, because it incorrectly states
Bonita received a 30-year sentence as to Count Eleven, when he was convicted
under Count Ten, and the judge’s stated intent was to sentence him to life
imprisonment under § 841(b)(1)(A)(iii). See United States v. Wimbush, 103 F.3d
968, 970 (11th Cir. 1997).16
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
16
Bonita’s other sentencing issues are meritless. He argues the district judge erred by
basing his sentence on crimes relating to cocaine base instead of cocaine and alleges there was
ambiguity concerning the nature of the drug involved. The district judge properly calculated the
Sentencing Guidelines range and applied § 2D1.1(c)(4) of the Guidelines, based on the quantity
of cocaine base involved in his crime. Bonita failed to show the judge inappropriately sentenced
him for crimes related to cocaine base rather than cocaine and did not demonstrate he was
entitled to relief on this argument. Similarly, the judge did not err or abuse his discretion in
sentencing Ductant, because he had made proper determinations regarding the character of
Ductant’s crime, his criminal history, and had considered mitigating factors.
37