United States v. Keemit Hand

Case: 17-14740 Date Filed: 01/11/2019 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-14740
Non-Argument Calendar
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D.C. Docket No. 1:01-cr-00513-CAP-LTW-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEEMIT HAND,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(January 11, 2019)
Before MARTIN, NEWSOM and BLACK, Circuit Judges.
PER CURIAM:
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Keemit Hand appeals his sentence for conspiring to distribute cocaine, in
violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(ii), and possessing, with intent to
distribute, at least 5 kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(A)(ii) and 18 U.S.C. § 2. Hand contends the district court clearly erred
both by denying him a mitigating- or minor-role adjustment and by applying a
two-level firearm enhancement. Hand further contends the district court abused its
discretion by imposing a sentence that is both procedurally and substantively
unreasonable. After review, we affirm.
I. DISCUSSION
A. Mitigating- or Minor-Role Adjustment1
Hand first contends the district court clearly erred by not granting him a
mitigating-role, or at the very least a minor-role, adjustment under U.S.S.G.
§ 3B1.2. According to Hand, a mitigating- or minor-role adjustment was required
because the evidence at trial showed that he was merely “a hanger-on, an
occasional helper to a helper.” Reply at 8.
But as the Government points out, the evidence arguably suggests Hand’s
role in the criminal enterprise was much more substantial. Hand was arrested and
convicted based on his participation in a transaction involving almost 150 kilos of
1
We review for clear error a district court’s determination of a defendant’s role in an
offense. United States v. Rodriguez De Varon, 175 F.3d 930, 938 (11th Cir. 1999) (en banc).
2
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cocaine. The district court also heard evidence that Hand previously assisted one
or more of his co-conspirators with handling, transporting, storing, and preparing
drugs for distribution. In addition, there was evidence suggesting Hand was
working off a debt he owed to a co-conspirator because a large quantity of
marijuana that was in Hand’s possession went missing. We have held that—while
not necessarily dispositive in and of itself—a large quantity of drugs in a
defendant’s possession may be the best indication of the magnitude of his
participation in a criminal enterprise. See United States v. Rodriguez De Varon,
175 F.3d 930, 943 (11th Cir. 1999).
Hand dismisses the import of this evidence, asserting that “[e]ven if [he] did
help Oliver with marijuana on these few occasions, such limited assistance did not
foreclose him from a minor role adjustment, given he was held accountable and
sentenced for 149 kilos of cocaine.” Reply at 4 (emphasis added). Moreover, even
if he participated in the cocaine transaction because he needed to pay off a debt
based on a large quantity of marijuana being stolen from his care, it would “not
preclude a finding of minor role.” Id. (emphasis added). But the relevant question
is not whether the minor-role adjustment is foreclosed or precluded by the
evidence; the question is whether a minor-role adjustment is required by the
evidence, such that failing to grant it was clear error. See United States v.
Almedina, 686 F.3d 1312, 1315 (11th Cir. 2012) (“Where a fact pattern gives rise
3
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to two reasonable and different constructions, the factfinder’s choice between them
cannot be clearly erroneous.” (quotation omitted)).
Hand contends a minor-role adjustment was nevertheless required because
both the Government and the district court acknowledged he was not as culpable as
some of the other members of his conspiracy. Specifically, he notes that: (1) in its
closing argument, the Government acknowledged Hand was “a low man on the
totem pole”; (2) the district court at sentencing acknowledged Hand was “a lesser
participant as compared to some of the other defendants”; and (3) the
Government’s sentencing memo acknowledged Hand was “among the least
culpable defendants charged in this case.” Br. of Appellant at 9, 40, 46. As we
have explained, however, “[t]he fact that a defendant’s role may be less than that
of other participants engaged in the relevant conduct may not be dispositive of role
in the offense, since it is possible that none are minor or minimal participants.”
Rodriguez De Varon, 175 F.3d at 944. The district court’s determination that Hand
was neither a minor nor minimal participant was not clearly erroneous.
Finally, Hand contends the district court did not adequately demonstrate it
considered all relevant factors. 2 This contention lacks merit. “In making the
ultimate determination of the defendant’s role in the offense, the sentencing judge
2
Defendant did not timely object to the district court’s summary explanation of its ruling
on this issue. Thus, we review the district court’s explanation only for plain error. United States
v. Barrington, 648 F.3d 1178, 1195 (11th Cir. 2011).
4
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has no duty to make any specific subsidiary factual findings.” Id. at 939. Thus, as
“long as the district court’s decision is supported by the record and the court
clearly resolves any disputed factual issues, a simple statement of the district
court’s conclusion is sufficient.” Id. The district court did not plainly err by
failing to discuss its findings with respect to each of the factors informing its
conclusion that Hand was not entitled to a mitigating- or minor-role adjustment.
And the district court’s decision does not indicate it failed to consider or
improperly considered any of the relevant factors.
B. Firearm Enhancement3
Hand next contends the district court clearly erred by concluding he
possessed a firearm in connection with a drug offense. See U.S.S.G.
§ 2D1.1(b)(1). One of Hand’s co-conspirators brought a firearm with him to the
site of the charged conduct. Thus, Hand had the burden of demonstrating that the
connection between the firearm and the conspiracy was “clearly improbable.”
United States v. Stallings, 463 F.3d 1218, 1220 (11th Cir. 2006). The district
court’s conclusion that Hand failed to meet his burden was not clearly erroneous.
3
We review for clear error a district court’s finding at sentencing that a defendant
possessed a firearm in connection with a drug offense. United States v. Stallings, 463 F.3d 1218,
1220 (11th Cir. 2006).
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C. Reasonableness of Sentence4
Finally, Hand contends the district court’s sentence was both procedurally
and substantively unreasonable. For the reasons explained above, we reject Hand’s
challenges to the procedural aspect of his sentence. With respect to substantive
reasonableness, the district court did not abuse its discretion. The record
demonstrates the district court properly considered Hand’s absconding, his history
and characteristics, the nature and circumstances of his offense, and the need to
avoid unwarranted sentencing disparities in arriving at a significantly below-
Guidelines term of imprisonment. See United States v. Croteau, 819 F.3d 1293,
1309–10 (11th Cir. 2016) (stating that a sentence within the Guidelines range and
significantly below the statutory maximum indicates reasonableness).
II. CONCLUSION
The district court did not clearly err by failing to grant a mitigating- or
minor-role reduction. Nor did it clearly err by applying an enhancement for
possessing a firearm in connection with a drug offense. Because Hand’s 188-
month sentence was both procedurally and substantively reasonable, we affirm.
AFFIRMED.
4
We review the reasonableness of a district court’s sentence for an abuse of discretion.
United States v. Trailer, 827 F.3d 933, 935 (11th Cir. 2016).
6