United States v. Daren Bernard Razz, III

USCA11 Case: 21-14254 Document: 31-1 Date Filed: 12/28/2022 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14254
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAREN BERNARD RAZZ, III,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:20-cr-80082-RAR-1
____________________
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2 Opinion of the Court 21-14254
Before LAGOA, BRASHER, and MARCUS, Circuit Judges.
PER CURIAM:
Daren Bernard Razz, III, appeals his convictions and sen-
tences for two counts of Hobbs Act robbery and one count of car-
rying a firearm during a crime of violence. On appeal, Razz argues
that the government violated his statutory and constitutional rights
to a speedy trial. In response, the government moves for summary
affirmance and to stay the briefing schedule, arguing that Razz does
not contest the district court’s jurisdiction and he entered into an
unconditional plea agreement, and, thus, we should not consider
his Speedy Trial Act arguments. After careful review, we grant the
government’s motion for summary affirmance and deny the mo-
tion to stay the briefing schedule.
I.
The relevant background is this. Following the govern-
ment’s filing of a criminal complaint in August 2020, the grand jury
formally charged Razz in December 2020, with one count of con-
spiracy to commit Hobbs Act robbery, 18 U.S.C. § 1951(a) (“Count
1”); seven counts of Hobbs Act robbery, id. §§ 2, 1951(a) (“Counts
2–8”); two counts of attempted Hobbs Act robbery, id. §§ 2,
1951(a), (“Counts 9–10); nine counts of possession of a firearm in
furtherance of a crime of violence, id. §§ 2, 924(c)(1)(A), (“Counts
11–19”); and one count of being a felon in possession of a firearm,
id. §§ 2, 922(g)(1) (“Count 20”). Razz initially pled not guilty to the
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21-14254 Opinion of the Court 3
charges and later moved to dismiss the indictment for speedy trial
violations under, inter alia, the Speedy Trial Act. 1 The district
court denied the motion.
Shortly thereafter, Razz agreed to plead guilty to three
counts of conviction pursuant to a written agreement. The district
court conducted a change of plea hearing, accepted Razz’s plea,
found him guilty of Counts 7, 8, and 19, and ultimately dismissed
the remaining counts. The district court then sentenced Razz to a
total of 163 months’ imprisonment, followed by 3 years of super-
vised release.
This timely appeal follows.
II.
Summary disposition is appropriate where, among other
things, “the position of one of the parties is clearly right as a matter
of law so that there can be no substantial question as to the out-
come of the case . . . .” Groendyke Transp., Inc. v. Davis, 406 F.2d
1158, 1162 (5th Cir. 1969). 2 A motion for summary affirmance or
summary reversal shall postpone the due date for the filing of any
remaining brief until we rule on the motion. 11th Cir. R. 31-1(c).
1 The Speedy Trial Act of 1974, 18 U.S.C. §§ 3161–74 (“Speedy Trial Act”).
2 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
we adopted as binding precedent all Fifth Circuit decisions issued before Oc-
tober 1, 1981.
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4 Opinion of the Court 21-14254
When appropriate, we review the denial of a motion to dis-
miss an indictment for a violation of the Speedy Trial Act for abuse
of discretion. United States v. Carter, 603 F.2d 1204, 1207 (5th Cir.
1979). We will consider whether a defendant’s constitutional right
to a speedy trial had been violated as a mixed question of law and
fact, reviewing questions of law de novo and questions of fact un-
der the clearly erroneous standard. United States v. Clark, 83 F.3d
1350, 1352 (11th Cir. 1996). We review the denial of a motion to
dismiss an indictment on non-constitutional grounds for abuse of
discretion. United States v. Pielago, 135 F.3d 703, 707 (11th Cir.
1993). Arguments not raised in an initial brief are abandoned, how-
ever. Sapuppo v. Allstate Floridian Ins., Co., 739 F.3d 678, 680
(11th Cir. 2014).
Generally, a voluntary, unconditional guilty plea waives all
nonjurisdictional defects in the proceedings. United States v. Patti,
337 F.3d 1317, 1320 (11th Cir. 2003). A speedy trial claim is a non-
jurisdictional challenge. United States v. Pierre, 120 F.3d 1153,
1155 (11th Cir. 1997). If a defendant wishes to preserve a nonjuris-
dictional ground for appeal, such as a speedy trial claim, he has to
enter a conditional guilty plea in accordance with Fed. R. Crim. P.
11(a)(2). Id. A conditional guilty plea needs to be consented to by
the district court and the government. Id.Under Rule 11, before a court can accept a guilty plea, it
must inform the defendant of his rights should he plead not guilty,
the nature of the charges against him, the potential penalties, and
the court’s obligation to calculate his advisory guideline range. See
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21-14254 Opinion of the Court 5
Fed. R. Crim. P. 11(b)(1)(B)–(E), (G)–(M). The court must also ex-
plain that a guilty plea waives the defendant’s trial rights and en-
sure that the plea is entered voluntarily and is supported by a suffi-
cient factual basis. See Fed. R. Crim. P. 11(b)(1)(F), (b)(2)–(3). Fur-
ther, the court must explain that the defendant can be prosecuted
for perjury for testifying falsely under oath. See Fed. R. Crim. P.
11(b)(1)(A).
In evaluating whether a Rule 11 error substantially has af-
fected a defendant’s rights, we have examined Rule 11’s three “core
principles,” which are ensuring that: (1) the guilty plea is free of
coercion; (2) the defendant understands the nature of the charges
against him; and (3) the defendant understands the direct conse-
quences of the guilty plea. United States v. Presendieu, 880 F.3d
1228, 1238 (11th Cir. 2018). As for the first core principle, Rule
11(b)(2) elaborates that the court must ensure that the plea did not
result from force, threats, or promises not included in the plea
agreement. Fed. R. Crim. P. 11(b)(2). Whether the court has com-
plied with the second core principle depends on a variety of factors,
including the complexity of the offense and the defendant’s intelli-
gence and sophistication. Presendieu, 880 F.3d at 1238–39. To
comply with the third core principle, the district court must inform
the defendant of the rights that he gives up by pleading guilty, the
court’s authority to impose certain punishments, and the possibil-
ity of a perjury prosecution for false statements during the plea col-
loquy. United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir.
2005); see also Fed. R. Crim. P. 11(b)(1).
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6 Opinion of the Court 21-14254
Ultimately, to show that an unpreserved Rule 11 error af-
fects substantial rights, a defendant “must show a reasonable prob-
ability that, but for the error, he would not have entered the plea.”
United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004); see also
United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005)
(explaining that the Dominguez Benitez requirement is a way to
show the third prong of the plain error test). We’ve indicated that,
for Rule 11 error to substantially prejudice a defendant’s rights, it
must be tantamount to the district court’s “total or almost total
failure to address a Rule 11 core concern,” as distinct from a situa-
tion in which the court “adequately addressed the three core con-
cerns but slipped up and failed to cover explicitly one item in the
Rule 11 list.” United States v. Monroe, 353 F.3d 1346, 1355 (11th
Cir. 2003) (quotations omitted). If an error committed during a
plea colloquy does not affect one of Rule 11’s core principles, and
it is clear that the defendant understands the plea and its conse-
quences, any error is harmless. United States v. Jones, 143 F.3d
1417, 1420 (11th Cir. 1998).
III.
We grant the government’s motion for summary affir-
mance. As an initial matter, Razz does not expressly challenge the
validity of his guilty plea on appeal, so he arguably has abandoned
any argument in that respect. Sapuppo, 739 F.3d at 680. However,
even if his challenge is implicitly preserved, it still fails. As the rec-
ord reflects, the district court complied with the first core principle
of Rule 11 by confirming that Razz’s guilty plea was free from
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21-14254 Opinion of the Court 7
coercion. Presendieu, 880 F.3d at 1238. Specifically, Razz agreed
that his plea had not been induced by any threats or promises, that
he was satisfied with his trial counsel’s representation, and that he
had committed the acts stated in the factual basis for the plea. Thus,
there was no indication of coercion in the record.
Moreover, the district court confirmed that Razz under-
stood the nature of the charges against him. Id. He confirmed that
he could read and write and had read and understood the charges
against him. He also confirmed that he was not under the influence
of any drugs or medication and did not suffer from mental illness.
The district court explained to him the charges in the indictment
and the elements thereof, and he confirmed that he understood
them. Further, the factual basis the government recited was accu-
rate. Therefore, the colloquy demonstrated that Razz understood
the nature of the charges against him.
The district court also confirmed that Razz understood the
consequences of his guilty plea. Id. He admitted that he under-
stood the punishments he could face. The district court informed
him of the collateral consequences of a felony conviction, the pos-
sibility of restitution, and that any statements he made during the
colloquy could be used against him in a future prosecution for per-
jury or making a false statement. The district court added that: (i)
he had the right to plead not guilty and (ii) the right to a trial by
jury, (iii) the government would have to prove his guilt beyond a
reasonable doubt, (iv) he had the right to counsel at trial, (v) he
could cross-examine witnesses and call his own witnesses, (vi) he
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8 Opinion of the Court 21-14254
could testify or not testify at trial, and (vii) if he chose not to testify
that choice could not be used against him. Further, even if the dis-
trict court had omitted things in its colloquy, he would not be able
to show that but for that error, he would not have pled guilty.
Dominguez Benitez, 542 U.S. at 83; see Monroe, 353 F.3d at 1355.
On this record, Razz’s plea was knowing, voluntary, and valid.
Because Razz entered a valid guilty plea, he waived all non-
jurisdictional arguments on appeal. Patti, 337 F.3d at 1320. As
we’ve said, a speedy trial challenge is a nonjurisdictional argument.
Pierre, 120 F.3d at 1155. Nor is there any evidence in the record
showing his plea agreement was a conditional plea. See id. Thus,
Razz waived his speedy trial arguments, and we affirm based on
that waiver.
Accordingly, because the government’s position is clearly
correct as a matter of law, we GRANT the government’s motion
for summary affirmance and DENY its motion to stay the briefing
schedule as moot per 11th Cir. R. 31-1(c). Groendyke Transp., Inc.,
406 F.2d at 1162.