United States v. Henock Colimon, Jr.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10629 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 1, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 3:08-cr-00427-HLA-JRK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HENOCK COLIMON, JR.,
a.k.a. Henock,
a.k.a. Haiti,
a.k.a. "H",
a.k.a. Marco,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 1, 2011)
Before HULL, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Henock Colimon, Jr. appeals his convictions, pursuant to a guilty plea, and
combined 300-month sentence for conspiracy to distribute 50 grams or more of
cocaine base and 500 grams or more of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A)-(B), 846, and possession of a firearm in furtherance of a
drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1). He argues that the
government breached the plea agreement by failing to make a substantial-
assistance motion, and he suggests that his plea is invalid because he entered it in
reliance on the purported promise of such a motion. He further argues that his
sentence appeal waiver does not bar review of whether (1) it was error to impose
his firearm-possession and drug-trafficking sentences to run consecutively and (2)
the total 300-month sentence was substantively unreasonable. For the reasons set
forth below, we affirm.
I.
Colimon and his codefendant resided in an apartment in Jacksonville,
Florida, from which they sold crack and powder cocaine. While distributing the
drugs, Colimon sometimes was armed with a revolver or semiautomatic pistol.
After the codefendant relocated to another apartment, Colimon remained in the
first apartment and continued to distribute drugs from within it. The codefendant
continued to assist Colimon by driving him to other locations to conduct drug
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deals and by allowing him to use her cell phone to facilitate his drug business.
On one occasion in August 2008, a confidential source (“CS”) arranged a
drug transaction with Colimon. The CS used his own vehicle to pick up Colimon
and, as instructed by law enforcement, drove through a stop sign. An officer
conducted a traffic stop and, upon observing a handgun near the vehicle’s console,
ordered Colimon and the CS to exit the vehicle. A search of the vehicle revealed
40.5 grams of powder cocaine and a personal-use amount of marijuana. Colimon
had $830 in his pants pocket. On an occasion in October 2008, Colimon was a
passenger in a vehicle that was stopped for traffic violations. The officer asked
Colimon, who was obviously nervous, to exit the vehicle while it was searched.
Before complying, Colimon placed on the floorboard a shoe box that he was
holding. As he exited the vehicle, he dropped the lid to a styrofoam cup that was
in the vehicle. The cup contained marijuana and marijuana seeds. The shoe box
contained 424 grams of marijuana, a de minimis quantity of cocaine base, and 1
ounce of powder cocaine. Officers also found a loaded pistol in the vehicle, and
Colimon had $420 in his pants pocket.
After Colimon was arrested, he used the jail’s telephone system to call his
codefendant. He instructed her on how to continue his drug business during his
incarceration, including how to contact his customers, which customers to
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continue serving and which to avoid, how to prepare, package, and distribute
cocaine, and who to engage to cook powder cocaine into crack for her.
In 2009, Colimon was charged in all 11 counts of a superseding indictment
that was returned against him and the codefendant: (Count 1) conspiracy to
distribute 50 grams or more of cocaine base and 500 grams or more of cocaine, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)-(B), 846; (Counts 2-3) making a
residence available for the unlawful storage and distribution of cocaine and
cocaine base, in violation of 21 U.S.C. § 856(a)(2), (b), 18 U.S.C. § 2; (Counts 4,
7, & 11) possession of a firearm in furtherance of a drug-trafficking crime, in
violation of 18 U.S.C. § 924(c)(1); (Counts 5 & 8) possession of a firearm by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2); (Counts
6 & 9) possession with intent to distribute cocaine, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(C); and (Count 10) possession with intent to distribute
marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D).
Colimon entered into a negotiated agreement whereby he would plead guilty
to Counts 1 and 4. The agreement included the following cooperation provision:
If the cooperation is completed prior to sentencing, the government
agrees to consider whether such cooperation qualifies as “substantial
assistance” . . . warranting the filing of a motion at the time of
sentencing recommending (1) a downward departure from the
applicable guideline range pursuant to U.S.S.G. § 5K1.1, or (2) the
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imposition of a sentence below a statutory minimum . . . pursuant to
18 U.S.C. § 3553(e), or (3) both. If the cooperation is completed
subsequent to sentencing, the government agrees to consider whether
such cooperation qualifies as “substantial assistance” . . . . warranting
a filing of a motion for a reduction of sentence within one year of the
imposition of sentence pursuant to Fed. R. Crim. P. 35(b). In any
case, the defendant understands that the determination as to whether
“substantial assistance” has been provided or what type of motion
related thereto will be filed, if any, rests solely with the United States
Attorney for the Middle District of Florida, and the defendant agrees
that defendant cannot and will not challenge that determination,
whether by appeal, collateral attack, or otherwise.
Other provisions in the agreement stated that the government “reserve[d] its right
to make any recommendations it deem[ed] appropriate regarding the disposition of
this case, subject to any limitations set forth” elsewhere in the agreement, that the
court would not be bound by any discussions between the government and
Colimon’s counsel, and that Colimon would not be permitted to withdraw his plea
if the court rejected any of the parties’ recommendations. Finally, the agreement
included a waiver of Colimon’s right to appeal or collaterally attack his sentence
on any ground, including miscalculation of the guideline range,
except (a) the ground that the sentence exceeds the defendant’s
applicable guidelines range as determined by the [c]ourt pursuant to
the United States Sentencing Guidelines; (b) the ground that the
sentence exceeds the statutory maximum penalty; or (c) the ground
that the sentence violates the Eighth Amendment to the Constitution;
provided, however, that if the government exercises its right to appeal
the sentence imposed, . . . then the defendant is released from his
waiver . . . .
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At the plea colloquy, the magistrate judge informed Colimon that the district
judge would have the authority to impose a sentence that was more or less severe
than the advisory guideline range, up to and including the statutory maximum
sentence. Colimon expressed his understanding that he would not have a right to
withdraw his plea if the sentence imposed were to be more severe than he
expected. The magistrate reviewed the statutory penalties, individually and in the
aggregate. Colimon acknowledged his signature on the plea agreement and his
initials on each page of the agreement. He acknowledged that he had read the
entire agreement, understood it, and was bound by it.
With respect to the cooperation provision, the magistrate stated,
[T]he government’s agreeing to consider your cooperation and . . .
whether it amounts to substantial assistance as that term is defined in
the guidelines and under the law, and . . . to consider filing the
appropriate motion to reduce your sentence . . . at the time of
sentencing or sometime after sentencing.
The main thing I want to make sure you understand is the
government’s not promising at this point to file a motion to reduce
your sentence.
They’re just agreeing at this point to consider your cooperation
in determining whether you’ve provided substantial assistance . . .
and what motion to file, if any.
Colimon said that he understood. The magistrate added, “[T]he determination as
to whether substantial assistance has been provided or what type of motion related
thereto will be filed, if any, rests solely with the United States Attorney . . . , and
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you agree that you cannot and will not challenge that determination, whether by
appeal, collateral attack, or otherwise.” Colimon expressed his agreement.
The magistrate also reviewed the terms of the sentence appeal waiver and
explained the term “collateral attack.” Colimon indicated that he understood the
implications of the waiver and that he was making it freely and voluntarily.
After the government read the factual basis for the plea, Colimon confirmed
that he was entering the plea freely and voluntarily, and without coercion or
intimidation. The magistrate asked whether “anyone made any promises or
assurances to [him] of any kind to get [him] to plead guilty[,] other than what[
was] stated in the plea agreement,” and whether he was “relying on any agreement,
discussion, promise, or understanding with anyone concerning what sentence
[would] be imposed . . . other than what[ was] in the plea agreement.” Colimon
answered “no” to both questions. Colimon stated affirmatively that he would
receive a sentence of 25 years’ to life imprisonment, but he indicated that he did
not know where in that range he would be sentenced and that no one had promised
him a light sentence or other reward in exchange for his guilty plea. Both the
prosecutor and Colimon’s counsel told the court that no assurances, promises, or
understandings had been made that were different or contrary to the terms in the
plea agreement. The magistrate found that the plea had been entered freely,
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voluntarily, knowingly, and intelligently, and the district court accepted the plea
on the magistrate’s recommendation.
The probation office determined that the § 924(c) offense in Count 4
required a mandatory, consecutive 60-month term of imprisonment. As to Count
1, the probation office determined that Colimon was accountable for 50 grams of
cocaine base, 500 grams of cocaine, and 424 grams of marijuana, for a total
marijuana equivalency of 1100.424 kilograms. His base offense level of 30,
pursuant to § 2D1.1 and comment. (n.10(D)(i)), was reduced by 3 levels for
acceptance of responsibility, pursuant to § 3E1.1(a)-(b), for a total offense level of
27. His 11 criminal-history points placed him in criminal history category V.
Colimon was subject to statutory sentencing ranges of 20 years’ to life
imprisonment for Count 1, and 5 years’ to life imprisonment for Count 4, to run
consecutively. His guideline range for Count 1 of 120 to 150 months’
imprisonment became exactly 240 months’ imprisonment due to the operation of
the mandatory minimum, and another 60 months were added to the guideline
sentence due to Count 4. Colimon also was subject to a statutory minimum and a
guideline sentence of ten years’ supervised release for Count 1, as well as statutory
and guideline maximums of five years’ supervised release for Count 4.
At the sentencing hearing, Colimon stated that he was not prepared to go
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forward with sentencing because the government had not yet filed a substantial-
assistance motion. He indicated that an FBI investigation with which he had
cooperated was underway, and that the government was not yet in a position to file
the motion, so he asked the court to continue the sentencing hearing. The court
indicated that it was prepared to go forward with sentencing and would not
continue the case. The government added that it was prepared for sentencing, that
Colimon had not pled with any guarantee of a substantial-assistance motion, and
that it would not be prepared to make such a recommendation until after Colimon
had testified before a grand jury in the ongoing investigation. When the time
came, the government would consider in good faith Colimon’s cooperation and
decide whether to file a Rule 35 motion for a sentence reduction.
The court denied the motion for a continuance and stated that it would
revisit the case if the government were to file a Rule 35 motion in the future.
Colimon indicated that he had signed the plea agreement with the expectation that
he would receive a substantial-assistance reduction, and that he believed the
government was engaging in “a little feet-dragging,” particularly as other
defendants in the past had received sentence reductions for far less cooperation
than Colimon had provided.
The court reviewed the calculations in the PSI and Colimon objected to the
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continuing disparity between sentences for crack and powder cocaine offenses.
He further objected that his sentences should be imposed concurrently rather than
consecutively, although he acknowledged this Circuit’s controlling case law to the
contrary. The district court overruled his objections.
The government noted that there had been no side deal during the plea
negotiations that would require the substantial-assistance motion to be filed based
on anything other than an assessment of Colimon’s assistance with the FBI
investigation. In light of Colimon’s offense conduct and extensive criminal
history, the government requested a 300-month mandatory-minimum sentence.
The court sentenced Colimon to 240 months’ imprisonment for Count 1 and 60
months’ imprisonment for Count 4, to run consecutively, as well as concurrent
terms of 10 and 5 years’ supervised release, respectively.
II.
As Colimon did not move to withdraw his plea in the district court, we
review the validity of the plea for plain error. See United States v. Mosley, 173
F.3d 1318, 1322 (11th Cir. 1999). “The four-prong test to establish plain error is:
(1) there must have been an error; (2) the error must have been plain; (3) the error
must have seriously affected substantial rights; and (4) the error must have
seriously affected the fairness, integrity, or public reputation of the judicial
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proceedings.” United States v. Woodard, 387 F.3d 1329, 1331 (11th Cir. 2004).
On direct appeal, we strongly presume that the defendant’s statements at the plea
colloquy were truthful, including his representation that he understood the
consequences of his plea. United States v. Medlock, 12 F.3d 185, 187 (11th Cir.
1994). “[A] defendant who seeks reversal of his conviction after a guilty plea, on
the ground that the district court committed plain error . . . , must show a
reasonable probability that, but for the error, he would not have entered the plea.”
United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 2340, 159
L.Ed.2d 157 (2004).
We review de novo the question of whether the government breached its
plea agreement with the defendant. United States v. Nyhuis, 211 F.3d 1340, 1343
(11th Cir. 2000). We also review de novo the validity and interpretation of an
appeal waiver. See United States v. Bushert, 997 F.2d 1343, 1352 (11th Cir. 1993)
(reviewing de novo whether a waiver was made knowingly and voluntarily); see
also United States v. Rubbo, 396 F.3d 1330, 1332-35 (11th Cir. 2005) (reviewing
de novo the interpretation of the terms of a waiver).
Federal Rule of Criminal Procedure 11 “imposes upon a district court the
obligation and responsibility to conduct an inquiry into whether the defendant
makes a knowing and voluntary guilty plea.” United States v. Hernandez-Fraire,
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208 F.3d 945, 949 (11th Cir. 2000). That inquiry “must address three core
concerns underlying Rule 11: (1) the guilty plea must be free from coercion;
(2) the defendant must understand the nature of the charges; and (3) the defendant
must know and understand the consequences of his guilty plea.” Id. (quotation
marks omitted). As part of this inquiry, the court must inform the defendant of the
rights he will waive by pleading guilty, all of the required and potential penalties,
the procedure for calculating a sentencing range and determining a reasonable
sentence, and the terms of any appeal waiver in the plea agreement. Rule 11(b)(1).
“Plea bargains . . . are like contracts and should be interpreted in accord
with what the parties intended.” Rubbo, 396 F.3d at 1334. Absent some
indication that the parties intended otherwise, the language of the agreement
should be given its ordinary and natural meaning. See id. at 1334-35.
A sentence appeal waiver must be made knowingly and voluntarily.
Bushert, 997 F.2d at 1350-51. Such a waiver is one of the direct consequences of
a guilty plea, so it is part of the core concerns that must be addressed at a Rule 11
hearing. Id. at 1351. Thus, in order for the waiver to be valid, the court must have
specifically discussed it with the defendant during the Rule 11 hearing, or the
record must make manifestly clear that the defendant otherwise understood the full
significance of the waiver. Id. A waiver of the right to appeal may include
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difficult or debatable issues or even blatant error. United States v. Howle, 166
F.3d 1166, 1169 (11th Cir. 1999).
The cooperation provision in Colimon’s plea agreement expressly stated
only that the government would “consider whether [his] cooperation qualifie[d] as
‘substantial assistance,’” and that if the government determined that a substantial-
assistance reduction was warranted, it would file either a pre-sentencing § 5K1.1
or § 3553(e) motion or a post-sentencing Rule 35 motion. It further stated that the
substantial-assistance determination rested solely with the government, that
Colimon agreed not to challenge that determination, and that the government
retained the right to recommend whatever sentence it deemed appropriate. During
the plea colloquy, the magistrate reviewed these provisions in detail, noted
specifically that the government had not promised to file a sentence-reduction
motion, and asked Colimon whether he understood that he would not be able to
challenge the government’s determination of whether substantial assistance had
been provided or whether a motion to that effect should be filed. Colimon,
counsel, and the prosecutor all assured the magistrate that no promises,
agreements, or understandings had been reached other than those contained in the
plea agreement, and Colimon explicitly told the magistrate that he knew that he
would be sentenced to at least 25 years’ imprisonment. The record contains no
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evidence that the government promised or otherwise obligated itself to file a
substantial-assistance motion prior to the sentencing hearing.
Accordingly, the district court did not err, plainly or otherwise, when it
failed to find that Colimon had entered his plea in reliance upon such a promise
and that, as a consequence, the plea was not knowing and voluntary. See
Woodard, 387 F.3d at 1331; Hernandez-Fraire, 208 F.3d at 949; Medlock, 12 F.3d
at 187. Furthermore, because the plea agreement clearly did not promise that a
substantial-assistance motion would be filed, and nothing in the record suggests
that the parties intended otherwise, the government did not breach the agreement
by failing to file such a motion. See Rubbo, 396 F.3d at 1334-35. As to the appeal
waiver, the magistrate expressly reviewed its terms, and Colimon indicated that he
understood the waiver and that he was making it freely and voluntarily.
Accordingly, it is valid, as well. See Bushert, 997 F.2d at 1351.
Because both the appeal waiver and the overall plea are valid and the
government is not in breach, Colimon may not appeal his sentence unless it is
above the guideline range as determined by the district court, above the statutory
maximum, or in violation of the Eighth Amendment. Colimon’s total 300-month
sentence is well below the statutory maximum of life imprisonment, it corresponds
to the guideline sentence calculated in the PSI and adopted by the district court,
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and a sentence below the statutory maximum generally does not trigger Eighth
Amendment concerns. See United States v. Moriarty, 429 F.3d 1012, 1024 (11th
Cir. 2005) (addressing the Eighth Amendment). Therefore, there are no
appealable issues arising from Colimon’s sentence. See Howle, 166 F.3d at 1169.
For the foregoing reasons, we affirm Colimon’s convictions and sentences.
AFFIRMED.
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