United States v. Korak Jerome Manuel

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 06-12337 ELEVENTH CIRCUIT
NOV 29, 2006
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 04-00632-CR-01-CAP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KORAK JEROME MANUEL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(November 29, 2006)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Korak Jerome Manuel appeals his 168-month sentence, which was imposed
after he pled guilty pursuant to a written plea agreement, to seven counts of unarmed
bank robbery. On appeal, Manuel argues the following: (1) the district court erred by
denying an offense-level reduction for acceptance of responsibility, pursuant to
U.S.S.G. § 3E1.1; and (2) the district court’s sentence, which was an upward variance
from the Guidelines range of 108 to 135 months’ imprisonment, was unreasonable.
After careful review, we dismiss in part and affirm in part.
The facts relevant to the instant sentencing claims are straightforward. On
October 25, 2005, by second superceding indictment, Manuel was charged with
sixteen counts of unarmed bank robbery, in violation of 18 U.S.C. § 2113(1); one
count of armed bank robbery, in violation of 18 U.S.C. § 2113(d); and one count of
using and carrying a firearm in connection with a crime of violence, in violation of
18 U.S.C. § 924(c). At Manuel’s arraignment, the government moved to dismiss four
of the unarmed bank robbery counts and Manuel subsequently proceeded to a jury
trial on the remaining counts.
On the second day of the trial, after the government had presented the
testimony of several witnesses, Manuel pled to seven counts of bank robbery, in
exchange for which the government agreed to dismiss the remaining charges, which
included the § 924(c) charge. The written plea agreement contained a waiver-of-
appeal provision, which read as follows:
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LIMITED WAIVER OF APPEAL: To the maximum extent permitted
by federal law, the defendant voluntarily and expressly waives the right
to appeal his sentence and the right to collaterally attack his sentence in
any post-conviction proceeding on any ground, except that the defendant
may file a direct appeal of an upward departure from the otherwise
applicable sentencing guideline range. The defendant understands that
this Plea Agreement does not limit the Government’s right to appeal, but
if the Government appeals the sentence imposed, the defendant may also
file a direct appeal of his sentence.
At a subsequent plea colloquy, the government proffered the following factual
basis for Manuel’s plea. Between approximately May 29, 2003 and November 3,
2004, Manuel robbed numerous Bank of America and SunTrust branches located
inside grocery stores. In total, about $70,000 in cash was stolen. During the
robberies, which were recorded on surveillance tapes, Manuel wore a floppy hat and
used a towel or newspaper to hide his face. Manuel was seen leaving one of the
robberies in a vehicle that was traced back to him. During a subsequent search of his
home, FBI agents found dye-stained money, and shirts that matched the clothing the
robber was wearing in the surveillance photographs. Manuel admitted his role in the
robberies and the amount of money involved, and he expressed remorse for his
conduct.
After advising Manuel of his rights, and the limitations on his right to appeal,
the district court accepted the guilty plea. In the course of the plea colloquy, the court
advised Manuel that under the plea agreement, (1) “it’s not possible to determine
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exactly how the guidelines are going to apply to your case until a presentence report
is completed, and you and the government have had the opportunity to object and
challenge any facts [in the PSI]”; (2) the court “retained the authority . . . to impose
a sentence that is more severe or less severe than a sentence called for by the
guidelines”; and (3) Manuel was waiving his right to appeal, “which means you’ll be
bound by [my] decision, and you are also waiving your right to collaterally attack this
sentence.” Manuel indicated that he understood the provisions. The district court
then accepted Manuel’s guilty plea.
The probation officer prepared a presentence investigation report (“PSI”),
noting that the offenses would not be grouped together. The calculations for most of
the counts were the same: a base offense level of 20 under U.S.S.G. § 2B3.1, with a
2-level enhancement under U.S.S.G. § 2B3.1(b)(1) because the offense involved a
financial institution. Thus, for these counts, the total adjusted offense level was 22.
For the robbery charged in Count 2, the PSI included an enhancement for threat of
death under U.S.S.G. § 2B3.1(b)(2)(F), in connection with a note Manuel handed to
the teller. Thus, the adjusted offense level for that count was 24. Pursuant to the
multiple-count adjustment of U.S.S.G. § 3D1.4, Manuel’s combined offense level
was increased by five points, resulting in an adjusted offense level of 29. The PSI did
not recommend a reduction for acceptance of responsibility, U.S.S.G. § 3E1.1, noting
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that Manuel had forced the government to prepare for and proceed to trial before
entering his plea.
The PSI calculated a criminal-history category III based on Manuel’s prior
convictions for theft-by-taking (1994), DUI (1994), battery/domestic violence (1997),
and conspiracy to commit robbery (1998). With an offense level of 29 and a criminal
history category III, the advisory Guidelines range was 108 to 135 months’
imprisonment. The PSI noted that an upward departure might be appropriate under
U.S.S.G. § 5K2.21 in consideration of the dismissed and uncharged conduct. Manuel
lodged objections to the enhancement for threat of death, the computation of his
criminal history category, and the denial of a reduction for acceptance of
responsibility.
At the sentencing hearing, the court sustained the objections to the
enhancement for threat of death and the criminal history category, but rejected
Manuel’s argument that he was entitled to an acceptance-of-responsibility reduction.
The court found that Manuel let the case go too far before pleading guilty. With the
sustained objections to the PSI, the district court determined that the adjusted offense
level was 27 and the criminal history category was II, resulting in a Guidelines range
of 78 to 97 months’ imprisonment. Based on the terms of the plea agreement, the
government said it was not asking for an “upward departure” above the Guidelines
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range, but did request a sentence at the high end of the range. The court stated that
it was considering imposing a 180-month “upward departure” sentence, even absent
a motion by the government, noting the following factors: (1) Manuel’s criminal
history; (2) the number of robberies involved in the instant offenses; and (3) the
court’s belief that 97 months was not sufficient punishment.
Defense counsel then told the court that Manuel had pled guilty and expressed
remorse, had a minimal criminal history, and had been employed. The court also
heard the mitigating testimony of Manuel’s mother and Manuel’s sister, who
described Manuel’s childhood, military service, and character, as well as Manuel’s
statement of remorse and request for a shorter sentence.
After listening to the witnesses, the court noted the sentencing factors in 18
U.S.C. § 3553(a) and imposed a sentence of 168 months -- a sentence the district
court termed an “upward departure” -- in light of the nature of the offense, Manuel’s
history, the number of robberies involved, and the fact that Manuel had committed
the offenses for both the money and the thrill. The court also noted the continuous
and dangerous behavior that could have ended in violence, and stated that it had come
down from the 180-month sentence it previously had mentioned at the hearing, prior
to hearing Manuel’s mitigating testimony and statement of remorse. Manuel again
objected to a sentence above the advisory range to which the district court responded,
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“since I made an upward departure it is my belief that you can proceed with your
appeal concerning the sentence.” This appeal followed.
First, Manuel argues he was entitled to a reduction for acceptance of
responsibility. The government urges that the waiver provision in Manuel’s plea
agreement bars this argument, and notes that Manuel does not suggest that the plea
was not knowing and voluntary.
A sentence appeal waiver contained in a plea agreement, made knowingly and
voluntarily, is enforceable. See United States v. Bushert, 997 F.2d 1343, 1345, 1350-
51 (11th Cir. 1993); see also United States v. Copeland, 381 F.3d 1101, 1107 (11th
Cir. 2004). The waiver can include the waiver of the right to appeal “difficult or
debatable legal issues or even blatant error.” United States v. Frye, 402 F.3d 1123,
1129 (11th Cir.), cert. denied, 125 S. Ct. 2986 (2005). To enforce a sentence-appeal
waiver, the government must demonstrate either that (1) the district court specifically
questioned the defendant about the waiver during the change of plea colloquy, or (2)
the record clearly shows that the defendant otherwise understood the full significance
of the waiver. Id. at 1351.
Here, although the appeal waiver excepts “upward departures,” we do not read
that provision to mean that even if the district court imposed an “upward departure,”
Manuel was free to appeal any and all aspects of his sentence unrelated to the
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imposition of a sentence above the advisory Guidelines range. There is no indication
in the record that Manuel misunderstood the waiver on this point, and it is clear that
he entered into the agreement, including the appeal-waiver provision, knowingly and
voluntarily. The language of the plea agreement is plain. Moreover, at the plea
colloquy hearing, the court confirmed that Manuel had discussed the waiver with
counsel and that he understood it. Thus, the appeal waiver is enforceable and it at
least covers the challenge to the denial of a reduction for acceptance of
responsibility. Accordingly, we dismiss the appeal as to this claim.
Manuel next argues that his sentence was unreasonable because there was
nothing about his case that falls outside the “heartland” of cases or warranted
imposition of a sentence that was 73 percent higher than the top-end of the Guidelines
range, and because the district court failed to make sufficient findings to support the
sentence above the Guidelines range, which we have termed a “variance,” not a
“departure.”1 Manuel also argues the district court’s consideration of his criminal
1
After United States v. Booker, 543 U.S. 220 (2005), we have explained that the term
variance refers to a sentence outside the advisory Guidelines range based on the § 3553(a) sentencing
factors. United States v. Irizarry, 458 F.3d 1208, 1211 (11th Cir. 2006); cf. United States v. Eldick,
443 F.3d 783, 788 n.2 (11th Cir. 2006) (explaining “the record reveals that the district court, at
resentencing, did not treat its decision to sentence Eldick above the guideline range as an upward
departure, but rather as an exercise of its discretion because the court did not cite to a specific
guidelines departure provision and, in the words of the district court, the guidelines did ‘not
adequately take into account the severity of the damage done by Mr. Eldick, and, therefore, I find
that they should not be applied.’ Therefore, we conclude that we are not reviewing the propriety of
a “guidelines” departure.”); United States v. Scott, 441 F.3d 1322, 1330 (11th Cir. 2006) (declining
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history, in the context of its § 3553(a) analysis, constituted improper double counting
because the same information was considered in calculating his criminal history
category.
We review a district court’s interpretation of the Guidelines de novo and its
findings of fact for clear error. United States v. Jordi, 418 F.3d 1212, 1214 (11th
Cir.), cert. denied, 126 S. Ct. 812 (2005). After a district court has calculated a
defendant’s advisory Guidelines range, it “may impose a more severe or more lenient
sentence,” which we review only for reasonableness. United States v. Crawford, 407
F.3d 1174, 1179 (11th Cir. 2005). In conducting our reasonableness review, which
is highly deferential, we do not apply the reasonableness standard to each individual
decision made during the sentencing process; instead, we review only the final
sentence for reasonableness, in light of the § 3553(a) factors. United States v. Martin,
455 F.3d 1227, 1237 (11th Cir. 2006). The district court need not state on the record
that it has explicitly considered each factor and need not discuss each factor. United
States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (per curiam). Rather, an
to address sentence outside the guidelines range based on § 3553(a) factors).
However, in light of the “upward departure” language used in the plea
agreement, at the plea colloquy, and at the sentencing hearing, in this case, we cannot
find that Manuel knowingly and voluntarily waived his right to appeal the imposition
of sentence above the Guidelines range.
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acknowledgment by the district court that it has considered the defendant’s arguments
and the § 3553(a) factors will suffice. Id.
Here, the district court considered Manuel’s arguments for a lesser sentence
and noted his mitigating evidence, but was persuaded to impose a harsher sentence
because of the seriousness of the crime, including the number of robberies involved,
the fact that Manuel used threats as part of the offenses, and the fact that Manuel
continued to commit the robberies for the “thrill” of it. The district court also
highlighted Manuel’s criminal history. Thus, the district court’s ruling plainly
reflects consideration of the § 3553(a) factors, including: the nature and
circumstances of the offense; the history and characteristics of Manuel; the advisory
Sentencing Guidelines range; and the need for the sentence to reflect the seriousness
of the offense, promote respect for the law, and provide just punishment. See 18
U.S.C. § 3553(a). Moreover, the district court explicitly discussed the application of
the § 3553(a) factors as necessary to determine a reasonable sentence. On this record,
Manuel cannot satisfy his burden to show that the district court imposed an
unreasonable sentence. Accordingly, we affirm.
DISMISSED IN PART AND AFFIRMED IN PART.
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