United States v. Mackese Walker Speight

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-12491 ; 11-14263 DECEMBER 19, 2011
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 2:06-cr-00452-RDP-TMP-2
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellee,
versus
MACKESE WALKER SPEIGHT,
a.k.a. Mackese A. Walker,
a.k.a. Keekee,
llllllllllllllllllllllllllllllllllllllllDefendant - Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Alabama
________________________
(December 19, 2011)
Before MARCUS, WILSON, and MARTIN, Circuit Judges.
PER CURIAM:
Mackese Speight pled guilty to one count of conspiracy to commit
carjacking, in violation of 18 U.S.C. § 371 (Count 1); three counts of carjacking,
in violation of 18 U.S.C. § 2119 (Counts 2, 4, and 6); and three counts of using a
firearm in connection with a crime of violence, in violation of 18 U.S.C. §
924(c)(1) (Counts 3, 5, and 7). She now appeals her conviction and 819-month
sentence. Speight alleges that her guilty plea was not entered knowingly and
voluntarily. She also contends that her 819-month sentence is procedurally and
substantively unreasonable and constitutes cruel and unusual punishment.
I.
In 2006, Speight was indicted for a number of offenses related to three
carjackings. Her parents hired Emory Anthony, Jr. to represent her, but Speight
and her parents later expressed concern about the quality of Anthony’s
representation, prompting him on February 8, 2007 to move to withdraw from the
case. Speight and Anthony discussed the issue with the court the following day,
and Speight agreed that Anthony would continue to represent her. Later that day,
Speight proceeded to plead guilty, without a plea agreement, to all charges against
her. She was sentenced on May 24, 2007 to 819 months in custody, and the
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sentence was not appealed.
On May 22, 2008, Speight filed an ineffective assistance of counsel claim
under 18 U.S.C. § 2255, requesting the right to file an out of time appeal, among
other relief. On May 24, 2010, the district court adopted the magistrate judge’s
Report and Recommendations and denied Speight’s motion. Speight appealed the
denial, and on May 23, 2011, this Court reversed the district court and authorized
Speight to file an out of time appeal of her conviction and sentence. In order to
procedurally allow Speight to make her appeal, the district court reimposed her
sentence on September 13, 2011. This appeal followed.
II.
Speight raises three issues in this appeal. First, she alleges that her plea was
not entered knowingly and voluntarily because (1) counsel’s assistance was
ineffective and (2) the trial court’s plea colloquy did not satisfy the requirements
of Federal Rule of Criminal Procedure 11(b). Next, Speight contends that her
sentence was procedurally and substantively unreasonable, such that the district
court’s sentencing was an abuse of discretion. Last, she argues that her sentence is
so excessive as to amount to a violation of the Eighth Amendment’s prohibition
against cruel and unusual punishment.
A.
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Because a guilty plea admits criminal conduct and waives the defendant’s
constitutional right to a jury trial, it must “not only must be voluntary but must be
[a] knowing, intelligent act[] done with sufficient awareness of the relevant
circumstances and likely consequences.” Finch v. Vaughn, 67 F.3d 909, 914 (11th
Cir. 1995) (citation and internal quotation marks omitted). A guilty plea is
knowing and voluntary if the defendant entered the plea without coercion and with
the understanding of the nature of the charges and the consequences of the plea.
United States v. Brown, 586 F.3d 1342, 1346 (11th Cir. 2009), cert. denied, 130 S.
Ct. 2403 (2010).
A defendant asserting ineffective assistance of counsel must demonstrate
that (1) counsel performed deficiently and (2) counsel’s deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984). When asserting an ineffective assistance of counsel claim in
the context of a claim that a plea was involuntary or unknowing, the prejudice
prong of Strickland is satisfied by a showing that “there is a reasonable probability
that, but for counsel’s errors, [the defendant] would not have pleaded guilty and
would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.
Ct. 366, 370 (1985).
Even if counsel was deficient in advising Speight about her trial options and
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potential sentence, Speight has not shown that this created prejudice. Speight
argues that it was deficient for her lawyer to only tell her that she faced “a lot” of
jail time, rather than calculating and disclosing the mandatory minimum sentence
that she faced. This may be true, but Speight did not express confusion about this
issue to the court or attempt to get more information about her potential sentence.
When the presentence report was issued, stating that she faced separate and
consecutive mandatory-minimum sentences of 84 months, 300 months, and 300
months, she did not object to these sentences, even though she objected to other
portions of the report. Furthermore, during her Rule 11 hearing she responded to
the sentencing judge that she understood the penalties she faced, and “[t]here is a
strong presumption that the statements made during the [plea] colloquy are true.”
United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994). Because Speight has
failed to demonstrate that she would not have pled guilty but for counsel’s errors,
we reject her ineffective assistance of counsel claim and turn to her allegation that
the sentencing court violated Rule 11(b).
Rule 11 is intended to protect a defendant’s rights by ensuring that (1) her
guilty plea is free from coercion, (2) she understands the nature of the charges
against her, and (3) she knows the possible direct consequences of her guilty plea.
United States v. Zickert, 955 F.2d 665, 668 (11th Cir. 1992) (per curiam). Speight
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argues that the district court did not satisfy the third of these objectives because it
failed to explain that her mandatory sentences for Counts 3, 5, and 7 would run
consecutively to each other, not just consecutively to other non-mandatory
sentences. Because Speight did not object to any Rule 11 violations below, she
must demonstrate plain error by the district court. See United States v. Vonn, 535
U.S. 55, 59, 122 S. Ct. 1043, 1046 (2002).
Rule 11(b) requires the district court to inform a defendant of “any
maximum possible penalty, including imprisonment, fine, and term of supervised
release” and “any mandatory minimum penalty.” Fed. R. Crim. P. 11(b)(1)(H),
(b)(1)(I). The sentencing court accurately related to Speight the maximum
penalties and any mandatory minimum penalties for each count. The district court
then stated, “with respect to Counts 3, 7, and 5 that I’ve gone over with you [that
imposed mandatory minimum sentences of 7, 25, and 25 years, respectively], if
there’s a conviction or a guilty plea on those counts, they may not be—the custody
sentences for those counts may not be served concurrently with any other
imprisonment with respect to any other sentence on any other count.” The court
reiterated by saying, “In other words, those would be consecutive; they would be
stacked. Do you understand that?” Speight affirmed that she did understand.
Speight now argues that from this explanation it would be natural to infer that
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because the court had only pointed out that the mandatory sentences could not run
concurrently to the discretionary sentences, the mandatory sentences as a group
could run concurrently with each other. Under this rationale, Speight could have
contemplated a mandatory minimum sentence of 25 years, rather that 57 years.
Although we agree that the court’s colloquy was somewhat unclear, we are
bound by our decision in United States v. Humphrey, in which we found that it
was not plain error for the district court to fail to state in its Rule 11 colloquy that
the sentences for different counts would run consecutively. 164 F.3d 585, 587–88
(11th Cir. 1999). We therefore do not find sufficient support for Speight’s Rule
11 claim.
In summary, the court questioned Speight during the plea colloquy:
And do you understand that if you get a higher penalty than you are
expecting, even if you misunderstood or miscalculated how to arrive
at an estimate about the sentencing and you end up getting a higher
penalty than you thought . . . that would not be the basis for setting
aside the guilty plea that you are . . . entering. Do you understand
that?
(emphasis added). Speight answered in the affirmative. We have no other
grounds to find that her plea was unknowing and involuntary or that her plea
colloquy failed to satisfy the requirements of Federal Rule of Criminal Procedure
11(b).
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B.
We review under an abuse of discretion standard whether a sentence is
procedurally or substantively unreasonable. Gall v. United States, 552 U.S. 38,
51, 128 S. Ct. 586, 597 (2007). This inquiry involves two steps. First, we
determine whether the district court committed any significant procedural errors,
such as “failing to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence—including an explanation for any deviation from the
Guidelines range.” Id. Second, if we are satisfied that the district court complied
procedurally, we “consider the substantive reasonableness of the sentence
imposed,” id., and ask whether the district court has failed “to achieve the
purposes of sentencing as stated in section 3553(a),” United States v. Talley, 431
F.3d 784, 788 (11th Cir. 2005) (per curiam).
The district court correctly calculated the Guidelines range, made no
statements during sentencing to indicate that it believed the Guidelines to be
mandatory, recited and considered § 3553(a) factors, and explained its rationale
for the sentence imposed. Because we conclude that there were no procedural
defects in this process, we turn to whether the sentence was substantively
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unreasonable.
Counts 3, 5, and 7 required imposition of a mandatory minimum sentence of
684 months, and here the district court had no discretion with respect to that
portion of the sentence. See United States v. Castaing-Sosa, 530 F.3d 1358,
1361–62 (11th Cir. 2008) (per curiam). Therefore, we consider only the
reasonableness of the remaining portion of the sentence imposed. The Guidelines
range for Speight’s other offenses was 135–168 months and the district court
imposed a sentence of 135 months “due to the lack of criminal history but also
because of the statutory minimums and the fact that that is a reasonable sentence
that computes to a total sentence that the Court believes is reasonable under the
circumstances but not greater than necessary to comply with the statutory purposes
of sentencing.” Based on the facts of the case and in light of the § 3553(a) factors,
we do not find the sentence imposed by the district court to be an abuse of
discretion.
C.
“We review challenges to the constitutionality of a sentence de novo.”
United States v. Sanchez, 586 F.3d 918, 932 (11th Cir. 2009), cert. denied, 130 S.
Ct. 1926 (2010). Outside the context of capital punishment, “successful
challenges to the proportionality of particular sentences should be exceedingly
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rare.” Hutto v. Davis, 454 U.S. 370, 374, 102 S. Ct. 703, 705 (1982) (citation and
internal quotation marks omitted). “In non-capital cases, the Eighth Amendment
encompasses, at most, only a narrow proportionality principle.” United States v.
Reynolds, 215 F.3d 1210, 1214 (11th Cir. 2000) (per curiam) (quoting United
States v. Brant, 62 F.3d 367, 368 (11th Cir. 1995) (per curiam)). We review the
sentence imposed by first determining whether the sentence imposed is “grossly
disproportionate to the offense committed.” Id. If we find that it is, we then
consider sentences imposed on others convicted of the same crime. Id. Speight’s
sentence is admittedly high for a first-time offender, but the harsh mandatory
minimums that apply to this case do not provide the sentencing Judge with the
flexibility to take into account Speight’s personal circumstances. Although at the
time of her sentence Speight was a 28 year old mother of two minor children, we
are unable to find the 819-month sentence to be grossly disproportionate to the
offenses committed, which included three violent carjackings and the use of
firearms.
AFFIRMED.
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