United States v. Kevin Lanorris Guyton

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 27, 2007
No. 06-14021 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-80135-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN LANORRIS GUYTON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 27, 2007)
Before HULL, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Kevin Lanorris Guyton appeals his conviction and sentence for distribution
of cocaine, in violation of 21 U.S.C. §§ 851, 841(a)(1) and (b)(1)(C). Guyton
argues that the government failed to present evidence sufficient to prove that he
violated 21 U.S.C. § 841. Second, Guyton argues that the government engaged in
impermissible racial discrimination when it exercised a peremptory challenge to
strike a black male from the jury pool. Last, Guyton argues that his sentence was
improperly enhanced based on prior convictions that were not charged in the
indictment or submitted to the jury, in violation of his Fifth and Sixth Amendment
rights. Guyton concedes, however, that we have held that Almendarez-Torres v.
United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) is still
binding precedent in this Circuit. For the reasons set forth more fully below, we
affirm.
Before trial, the government filed a notice of prior felony drug convictions,
pursuant to 21 U.S.C. § 851. The notice indicated that, in March 1999, Guyton
was convicted of one count of selling cocaine and one count of possession of
cocaine, in violation of Florida state law. Guyton did not challenge the validity of
these prior convictions at the sentencing hearing.
The jury found Guyton guilty of the charge in the indictment. The district
court sentenced Guyton to 262 months’ imprisonment and 6 years’ supervised
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release.
I.
We review de novo “whether there is sufficient evidence to support the
jury’s verdict.” United States v. Ortiz, 318 F.3d 1030, 1036 (11th Cir. 2003). We
will affirm the jury’s verdict “if a reasonable trier of fact could conclude that the
evidence establishes guilt beyond a reasonable doubt.” Id. (quotation omitted). On
review, the evidence is viewed “in the light most favorable to the government, with
all reasonable inferences and credibility choices made in the government’s favor.”
Id. (quotation omitted). “It is not necessary that the evidence exclude every
reasonable hypothesis of innocence or be wholly inconsistent with every
conclusion except that of guilt . . . . A jury is free to choose among the
constructions of the evidence.” United States v. McDowell, 250 F.3d 1354, 1365
(11th Cir. 2001) (quotation omitted).
To convict a defendant of distribution of cocaine, the government must
prove that the defendant knowingly or intentionally distributed or dispensed the
cocaine. 21 U.S.C. § 841(a)(1). Here, Ann Judah and Agent Kim Wright both
testified that the DEA directed Judah to arrange a cocaine transaction with Guyton.
Judah and Guyton agreed to meet at the Harbor Lights Inn and Agent Wright
accompanied Judah to the motel. During the transaction, Judah was equipped with
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video and audio recording devices. At the motel, Guyton met with Judah near her
car and asked for a cigarette. Judah gave Guyton a box of Marlboro 100s and in
return, Guyton handed Judah a Kool cigarette box, which was later found to
contain cocaine. In exchange, Judah handed Guyton $200.00. Agent Wright
confirmed that she had Judah within her sight during the entire transaction and
further testified that she conducted searches of Judah both before and after the
transaction and did not find Judah in possession of any contraband. Although
Guyton does not appear in the video recording, his voice could be heard on both
video and audio recordings and was identified by Judah and Agent Wright, along
with several other agents who had become familiar with his voice during previous
conversations. Moreover, Judah’s testimony concerning the transaction was
consistent and was corroborated by Agent Wright. Further, although Guyton
attempts to assert that another person might have been responsible for the drug
transaction, the jury was free to disregard such a theory in light of the evidence
presented at trial. See McDowell, 250 F.3d at 1365. For all these reasons, the
government’s evidence was sufficient to establish each element of the distribution
charge, specifically, that Guyton knowingly and intentionally distributed cocaine.
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II.
We review the district court’s resolution of a Batson 1 challenge with great
deference. United States v. Allen-Brown, 243 F.3d 1293, 1296 (11th Cir. 2001).
“A district court's finding as to why a juror is excused is an issue of fact, and as
such, it will not be disturbed on appeal ‘unless it is clearly erroneous or appears to
have been guided by improper principles of law.’” Id. at 1297. “The Batson
three-step procedure for evaluating an objection to a peremptory challenge is as
follows: (1) the objector must make a prima facie showing that the peremptory
challenge is exercised on the basis of race; (2) the burden then shifts to the
challenger to articulate a race-neutral explanation for striking the jurors in
question; and (3) the trial court must determine whether the objector has carried its
burden of proving purposeful discrimination.” Id. Batson is violated even if only
one peremptory strike resulted from discriminatory intent. Cochran v. Herring, 43
F.3d 1404, 1412 (11th Cir. 1995).
The district court did not clearly err in finding that Guyton failed to prove
that the government engaged in purposeful race discrimination in light of the
government’s legitimate race-neutral reasons for striking a black male from the
jury. “The fact that a prospective juror has prior . . . involvement with drug
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Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1968).
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charges . . . has been deemed a racially neutral reason for the government to strike
under Batson.” United States v. Bennett, 928 F.2d 1548, 1551 (11th Cir. 1991)
(quotation omitted). Here, the record indicates that the prospective juror was
previously arrested for drug possession, a charge that was closely related to the
offense with which Guyton was charged. Accordingly, the district court did not
clearly err in finding that it was a legitimate, non-discriminatory reason for striking
the black male from the jury and properly denied Guyton’s Batson motion.
III.
Guyton’s constitutional challenge to his sentence, based on the fact that his
prior convictions were neither alleged in the indictment nor presented to the jury, is
raised for the first time on appeal. Accordingly, we review this issue for plain
error. See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).
Under this standard of review, there must be (1) an error, (2) that is plain, and (3)
that affects substantial rights. Id. If these three conditions are met, we may
exercise our discretion to correct the error only if “the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id. (citation and
quotation omitted).
A district court does not err by relying on prior convictions to enhance a
defendant’s sentence. United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir.
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2005). In Almendarez-Torres, the Supreme Court held that prior convictions could
be considered and used to enhance a defendant’s sentence without having been
alleged in the indictment or proved beyond a reasonable doubt. 523 U.S. at 244-
46, 118 S.Ct. at 1231-32. Subsequent decisions, namely, Apprendi v. New Jersey,
530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Blakely v. Washington,
542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v.
Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), have not disturbed
its holding. United States v. Gibson, 434 F.3d 1234, 1246 (11th Cir.), cert. denied,
126 S.Ct. 2911 (2006). “Although recent decisions . . . may arguably cast doubt on
the future prospects of Almendarez-Torres’s holding regarding prior convictions,
the Supreme Court has not explicitly overruled Almendarez-Torres. As a result,
we must follow Almendarez-Torres.” United States v. Camacho-Ibarquen, 410
F.3d 1307, 1316 n.3 (11th Cir.), cert. denied, 546 U.S. 951 (2005); see Gibson, 434
F.3d at 1246-47.
As Guyton acknowledges in his brief, his arguments are contrary to this
Court’s precedent. Thus, the district court did not plainly err when it enhanced
Guyton’s sentence based on his prior convictions. See Shelton, 400 F.3d at 1329.
Guyton acknowledges that whether a district court can enhance a sentence based
on prior convictions neither alleged in the indictment nor proven beyond a
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reasonable doubt survives based on the continued vitality of Almendarez-Torres.
As we have held that the decision in Almendarez-Torres is still good law, Guyton’s
claim fails. See Gibson, 434 F.3d at 1246-47; Carmacho-Ibarquen, 410 F.3d at
1315-16.
In light of the foregoing, Guyton’s conviction and sentence are
AFFIRMED.
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