United States v. Kevin Denard Rozier

Case: 15-15337 Date Filed: 04/18/2017 Page: 1 of 14
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-15337
Non-Argument Calendar
________________________
D.C. Docket No. 1:93-cr-00252-UU-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN DENARD ROZIER,
a.k.a. Bo,
a.k.a. Cowboy,
a.k.a. Slick,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
Before JULIE CARNES, JILL PRYOR, and DUBINA, Circuit Judges.
PER CURIAM:
Case: 15-15337 Date Filed: 04/18/2017 Page: 2 of 14
Appellant Kevin Denard Rozier (“Rozier”) appeals his total 40-year
sentence, imposed by the district court following two successful post-conviction
proceedings. Rozier was convicted of two counts of distributing cocaine, in
violation of 21 U.S.C. § 841(a)(1) (“counts 5 and 6”), and one count of possessing
a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (“count 20”).
Prior to his first post-conviction proceeding, a 28 U.S.C. § 2241 petition, he was
sentenced to 20 years’ imprisonment on counts 5 and 6, to run concurrently, and to
life imprisonment on count 20, also to run concurrently. In 2011, following his
successful § 2241 petition challenging only his sentence on count 20, the district
court resentenced him to 20 years’ imprisonment on counts 5 and 6, to run
consecutively, and to 10 years’ imprisonment on count 20, to run consecutively. In
2014, following his second successful post-conviction proceeding, a 28 U.S.C.
§ 2255 motion, his sentence was vacated because he was denied the opportunity to
allocute. In 2015, the district court resentenced Rozier to 20 years’ imprisonment
on count 5; 20 years’ imprisonment on count 6, 10 of which would run concurrent
to his sentence on count 5 and 10 of which would run consecutive; and 10 years on
count 20, to run consecutive to his sentences on counts 5 and 6.
On appeal, Rozier first argues that the district court did not have the
authority to impose a partially consecutive sentence. Second, he contends that the
district court erred by utilizing his 2011 presentence investigation report (“PSI”) at
2
Case: 15-15337 Date Filed: 04/18/2017 Page: 3 of 14
his 2015 resentencing. Third, Rozier asserts that the district court incorrectly
calculated and applied the Guidelines to his case. Fourth, he argues that his
sentence is procedurally and substantively unreasonable. Finally, Rozier contends
that his case should be remanded to a different judge. We address each of the
arguments below.
I.
First, Rozier argues that because his § 2241 petition only challenged his
§ 922(g) conviction, the district court did not have the authority to reconsider and
change his sentences on counts 5 and 6, which were originally imposed to run
concurrently. He asserts that our rulings on his prior direct appeals—which held
that his drug and gun convictions were interdependent—were clearly erroneous.
We review questions concerning the jurisdiction of the district court de
novo. United States v. Oliver, 148 F.3d 1274, 1275 (11th Cir. 1998).
To begin with, a district court has jurisdiction to resentence a defendant on
all counts of a conviction, provided that the counts are interdependent. See United
States v. Fowler, 749 F.3d 1010, 1015-16 (11th Cir. 2014). Further, the law-of-
the-case doctrine states that an issue decided at one stage of a case is binding at
later stages of the same case, including where a party had the opportunity to appeal
a district court’s ruling on appeal on an issue but did not do so. United States v.
Escobar-Urrego, 110 F.3d 1556, 1560-61 (11th Cir. 1997). Once such a decision
3
Case: 15-15337 Date Filed: 04/18/2017 Page: 4 of 14
becomes final, the law-of-the-case doctrine is operative. Vintilla v. United States,
931 F.2d 1444, 1447 (11th Cir. 1991). There are three exceptions to the law-of-
the-case doctrine: (1) there is new evidence; (2) there is an intervening change in
the controlling case law that would change the result; or (3) the decision was
clearly erroneous and would cause manifest injustice. Escobar-Urrego, 110 F.3d
at 1561.
“Our case law equates manifest injustice with the plain error standard of
review,” such that “[t]o demonstrate manifest injustice, a petitioner must
demonstrate (1) that there was error; (2) that was plain; (3) that affected his
substantial rights; and (4) that affected the fundamental fairness of the
proceedings.” United States v. Quintana, 300 F.3d 1227, 1232 (11th Cir. 2002).
To show that an error affected one’s substantial rights, the defendant must show
that there is a reasonable probability of a different result in the outcome of his case.
United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005). Finally, unless
the explicit language of a statute or rule resolves an issue, there can be no plain
error where there is no precedent from the Supreme Court or this court directly
resolving it. United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003).
Here, the district court had the authority to reconsider the sentences imposed
on counts 5 and 6, because we previously ruled that Rozier’s gun and drug counts
were interdependent. See United States v. Rozier, 485 F. App’x 352, 356 (11th
4
Case: 15-15337 Date Filed: 04/18/2017 Page: 5 of 14
Cir. 2012) (noting that, in Rozier’s 2002 direct appeal, this court ruled that the drug
and firearms offenses in his case were interdependent for sentencing purposes,
because count 20 involved conduct that was treated as a special offense
characteristic in the Guidelines applicable to counts 5 and 6, and they were all
grouped together).
Although Rozier contends that the law-of-the-case doctrine should not apply
because this court’s prior rulings on the interdependence issue was clearly
erroneous, he fails to show that the decision resulted in manifest injustice. See
Escobar-Urrego, 110 F.3d at 1561. The explicit language of a statute or rule does
not resolve this issue, and Rozier does not point to any binding precedent from this
court or the Supreme Court that directly resolves it. As manifest injustice is
equated with the plain error standard, and there can be no plain error where there is
no binding authority to resolve the issue, the manifest injustice exception to the
law-of-the-case doctrine does not apply. In short, because the interdependence
question was decided in an earlier appeal, and none of the exceptions to the law-of-
the-case doctrine apply, we may not reconsider the issue in this appeal. 1
1
Moreover, Rozier’s claim fails on the merits. Convictions are interdependent when they are part of a sentencing
package. See Fowler, 749 F.3d at 1015. The sentencing package doctrine is a judicial practice that permits a district
court to resentence a defendant on all counts of conviction where: (1) the defendant was sentenced on multiple
counts, such that the overall sentence is a package of interrelated sanctions for all of the offenses; (2) one of the
defendant’s convictions subsequently is vacated; and (3) the district court needs to “reconstruct the sentence
package” so that that the overall sentence comports with the Guidelines, the 18 U.S.C. § 3553(a) factors, and the
court’s opinion of a proper sentence for the remaining convictions. Id. at 1015-16. Here, it is clear the district court
sentenced Rozier on all counts of his conviction as a package based upon the Sentencing Guidelines and the 18
U.S.C. § 3553(a) factors. At Rozier’s 2001 resentencing, the district court explicitly stated that Rozier’s sentence
was a “sentencing package.” [DE 2329 at 4, 6]. Similarly, in 2011, the district court reiterated that Rozier had
5
Case: 15-15337 Date Filed: 04/18/2017 Page: 6 of 14
II.
Second, Rozier argues that imposing a consecutive sentence violated
U.S.S.G. § 5G1.2(d), and that the violation was not clear because the probation
office failed to provide a revised PSI before his 2015 resentencing. He contends
that the 2011 PSI did not account for changes in the 2015 Guidelines related to the
career offender enhancement and did not update the offense conduct to reflect that
other convictions had been dismissed. He also asserts that the district judge erred
by failing to verify that he read the PSI. Additionally, Rozier argues that the
offense level for the amount of cocaine base for which he was held accountable, 20
kilograms, was decreased by 2 levels under the 2015 Guidelines, making his
guideline range 360 months’ imprisonment to life. Finally, Rozier asserts that
§ 5G1.2(d) only allows courts to impose consecutive sentences to meet the “total
punishment,” which he contends refers to the low end of the applicable range, and,
thus, the court could not impose a sentence above 30 years’ imprisonment.
As an initial matter, because Rozier did not object to the court’s use of the
2011 PSI for his 2015 resentencing, any challenges related to using the 2011 PSI
are reviewed for plain error. See United States v. Richardson, 166 F.3d 1360, 1361
(11th Cir. 1999).
always been sentenced to a package sentence, with each count being interdependent. [DE 2218 at 6]. The district
court stated that “the intent here always was to pronounce a sentencing package” and “the intention always has been
to sentence Mr. Rozier to the most time I could possibly sentence him to.” [DE 2194 at 3]. Thus, it is clear that
counts 5 and 6 and count 20 are part of a sentencing package, and therefore interdependent.
6
Case: 15-15337 Date Filed: 04/18/2017 Page: 7 of 14
Here, use of the 2011 PSI at Rozier’s 2015 resentencing was not plain error,
as it did not affect his substantial rights. See Quintana, 300 F.3d at 1232. Rozier
has not shown that there is a reasonable probability that any error resulting from
using the 2011 PSI would have changed the outcome of his case. See Rodriguez,
398 F.3d at 1299.
First, Rozier’s contention that the 2011 PSI did not account for changes in
the 2015 Guidelines related to the career offender enhancement is meritless,
because his offense level calculation was based on the amount of drugs for which
he was held accountable, not his status as a career offender. [See PSI ¶¶75, 82].
Second, Rozier’s argument regarding the failure to remove offense conduct
relating to his acquitted and dismissed convictions is foreclosed by the law-of-the-
case doctrine, because Rozier made numerous factual objections prior to his 2011
resentencing, including objections to the facts in the PSI relating to the alleged
conspiracy and ongoing criminal activity, and he did not appeal the court’s denial
of those objections on direct appeal. No exceptions to the law-of-the-case doctrine
apply.
Third, Rozier correctly points out that the offense level of the amount of
cocaine base for which he was held accountable, 20 kilograms, was reduced from a
level 38 under the 2010 Guidelines to a level 36 under the 2015 Guidelines.
However, the record indicates that the district court agreed with Rozier, and
7
Case: 15-15337 Date Filed: 04/18/2017 Page: 8 of 14
reduced his offense level by 2, because the court calculated a guidelines range of
360 months’ imprisonment to life, corresponding to an offense level of 42. If the
offense level had remained at 44, the guideline range would have been life
imprisonment.
Fourth, the district court did not commit plain error when it failed to
personally ask Rozier if he read the PSI, because Rozier has not shown that there is
a reasonable probability that his sentence would have been different if the court
had asked him whether he read the PSI. Moreover, the record shows that the
district court did, in fact, ask Rozier’s counsel if he reviewed the PSI with his
client, and that his counsel assured the court he had. [DE 2322 at 2].
Finally, we conclude that the district court did not plainly err under
§ 5G1.2(d) by imposing a partially consecutive sentence to achieve a total sentence
that was within the guideline range. The Guidelines state, “[i]f the sentence
imposed on the count carrying the highest statutory maximum is less than the total
punishment, then the sentence imposed on one or more of the other counts shall
run consecutively, but only to the extent necessary to produce a combined sentence
equal to the total punishment.” U.S. SENTENCING GUIDELINES MANUAL § 5G1.2(d)
(U.S. SENTENCING COMM’N 2016). The language of § 5G1.2(d) does not explicitly
state that consecutive sentences may only be imposed to reach the low end of the
applicable guideline range, and Rozier does not cite to any binding authority from
8
Case: 15-15337 Date Filed: 04/18/2017 Page: 9 of 14
this court or the Supreme Court to support such a contention. Accordingly, there
can be no plain error as to this issue. See Lejarde-Rada, 319 F.3d at 1291.
III.
Third, Rozier argues that the district court incorrectly calculated and applied
the Guidelines. He challenges the application of the firearm enhancement; the
reliance on acquitted and dismissed conduct; the application of the enhancement
for his role as a leader; and his designation as a career offender.
In reviewing a district court’s Guidelines calculation, we review the findings
of fact for clear error and the application of the Guidelines to those facts de novo.
United States v. Belfast, 611 F.3d 783, 823 (11th Cir. 2010).
Here, we conclude that the district court did not err in calculating and
applying the Guidelines. First, Rozier’s challenges to the firearm enhancement
under § 2D1.1(b)(1), the use of acquitted and dismissed conduct, and the role
enhancement under § 3B.1.1 are barred by the law-of-the case doctrine, because
Rozier made identical objections prior to his 2011 resentencing–which the district
court overruled–and did not appeal the court’s rulings on direct appeal. [PSI
Addendum 6]; Rozier III, 485 F. App’x at 354. Further, none of the law-of-the-
case doctrine exceptions apply.
Additionally, Rozier’s argument that the district court erred by determining
that he was a career offender was not raised before the district court, and thus, is
9
Case: 15-15337 Date Filed: 04/18/2017 Page: 10 of 14
reviewed for plain error only. Rozier’s career offender designation was not plain
error, as it did not affect his substantial rights, because his offense level calculation
was based on the amount of drugs for which he was held accountable, not his
status as a career offender. See Quintana, 300 F.3d at 1232. Accordingly, we
conclude that the district court did not err in calculating and applying the
Guidelines to Rozier’s case.
IV.
Fourth, Rozier contends that his sentence is procedurally unreasonable due
to the errors he alleged in Issue 3, and because the district court failed to properly
consider the mitigating sentencing factors, such as unwarranted sentencing
disparities, his personal characteristics, and his rehabilitation. Rozier also argues
that his sentence was substantively unreasonable, because it was higher than
necessary to comport with the statutory purposes of sentencing and was longer
than the sentences of his codefendants.
We review the reasonableness of a sentence under a deferential abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591
(2007). However, when a defendant fails to object at the time of sentencing to the
procedural reasonableness of a sentence imposed by a district court, we review the
argument for plain error. United States v. Vandergrift, 754 F.3d 1303, 1307 (11th
Cir. 2014).
10
Case: 15-15337 Date Filed: 04/18/2017 Page: 11 of 14
We employ a two-step process in reviewing the reasonableness of a
sentence. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). We look
first at whether the district court committed any significant procedural error and
then at whether the sentence is substantively reasonable under the totality of the
circumstances. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). The
party challenging the sentence has the burden of demonstrating that it is
unreasonable in light of the record and the sentencing factors. Id.
In analyzing a sentence for significant procedural error, we examine factors
such as whether the district court failed to calculate (or improperly calculated) the
guideline range, treated the Guidelines as mandatory, failed to consider the
§ 3553(a) factors, selected a sentence based on clearly erroneous facts, or failed to
adequately explain the chosen sentence. Gall, 552 U.S. at 51, 128 S. Ct. at 596.
Nonetheless, where the record makes clear that the sentencing judge considered the
evidence and arguments for imposing a sentence outside the guideline range, even
a briefly worded statement of reasons for imposing a sentence is legally sufficient.
Rita v. United States, 551 U.S. 338, 359, 127 S. Ct. 2456, 2469 (2007). Moreover,
nothing requires the district court to state on the record that it has explicitly
considered each of the § 3553(a) factors or to discuss each of the § 3553(a) factors,
and the sentence may be upheld as reasonable when the record indicates that the
11
Case: 15-15337 Date Filed: 04/18/2017 Page: 12 of 14
court considered a number of the sentencing factors. United States v. Dorman, 488
F.3d 936, 944 (11th Cir. 2007).
A district court must impose a sentence “sufficient, but not greater than
necessary to comply with the purposes” listed in § 3553(a)(2), including the need
to reflect the seriousness of the offense, promote respect for the law, provide just
punishment for the offense, deter criminal conduct, and protect the public from the
defendant’s future criminal conduct. See 18 U.S.C. § 3553(a)(2) (2012). In
imposing its sentence, the district court must also consider the nature and
circumstances of the offense, the history and characteristics of the defendant, the
kinds of sentences available, the applicable guideline range, and the need to avoid
unwarranted sentencing disparities among defendants with similar records who
have been found guilty of similar conduct. Id. § 3553(a)(1), (3)-(4), (6).
The weight accorded to any given § 3553(a) factor is a matter committed to
the sound discretion of the district court. United States v. Clay, 483 F.3d 739, 743
(11th Cir. 2007). However, a district court abuses its discretion when it (1) fails to
afford consideration to relevant factors that were due significant weight, (2) gives
significant weight to an improper or irrelevant factor, or (3) commits a clear error
of judgment in considering the proper factors. United States v. Irey, 612 F.3d
1160, 1189 (11th Cir. 2010) (en banc). Furthermore, a district court’s unjustified
reliance on any one § 3553(a) factor to the detriment of all the others may be a
12
Case: 15-15337 Date Filed: 04/18/2017 Page: 13 of 14
symptom of an unreasonable sentence. United States v. Crisp, 454 F.3d 1285,
1292 (11th Cir. 2006).
Finally, although we do not automatically presume a sentence within the
guideline range to be reasonable, we ordinarily expect such a sentence to be
reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). A sentence
well below the statutory maximum penalty is another indicator of reasonableness.
See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).
As an initial matter, Rozier did not object to the procedural reasonableness
of his sentence at the sentencing hearing, and, thus, the issue is reviewed for plain
error. See Vandergrift, 754 F.3d at 1307.
The district court did not plainly err as to the procedural reasonableness of
Rozier’s sentence. First, as discussed in Issue 3, the court did not improperly
calculate the guideline range. Moreover, the record indicates that the district court
adequately explained the chosen sentence and considered a number of the §
3553(a) factors, such as the nature of the offense; the need for the sentence to
reflect the seriousness of the offense, provide just punishment, deter future
criminal conduct, and protect the public; the kinds of sentences available and the
guideline range; and potential sentence disparities. See 18 U.S.C. § 3553(a)(1)-(4),
(6). Also, the district court explicitly stated that it had considered the statements of
13
Case: 15-15337 Date Filed: 04/18/2017 Page: 14 of 14
the parties, the PSI, the Guidelines, and the statutory factors. See Rita, 551 U.S. at
359, 127 S. Ct. at 2469.
Additionally, Rozier has not demonstrated that his sentence is substantively
unreasonable. As discussed above, the record shows that the district court weighed
the § 3553(a) factors before imposing Rozier’s sentence. Also, while Rozier’s
codefendants may have received a shorter sentence, the district court explicitly
noted that the codefendants were not convicted of the same offenses as Rozier and
did not have his same criminal history. Furthermore, Rozier’s 40-year total
sentence was within the guideline range and below the statutory maximum penalty
of a consecutive total sentence of 50 years’ imprisonment, two indicators of a
reasonable sentence. See 21 U.S.C. § 841(b)(1)(C); 18 U.S.C. § 924(a)(2); Hunt,
526 F.3d at 746; Gonzalez, 550 F.3d at 1324.
V.
Finally, Rozier argues that, if we remand his case, it should be remanded to a
different judge, because the district court displayed pervasive judicial bias.
We need not address Issue 5, because our review of the record persuades us
that the district court committed no reversible error. Accordingly, we affirm
Rozier’s sentence.
AFFIRMED.
14