United States v. Erick Billings

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-12113
January 24, 2008
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 06-00204-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERICK BILLINGS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(January 24, 2008)
Before BIRCH, DUBINA and MARCUS, Circuit Judges.
PER CURIAM:
Erick Billings appeals his convictions, and 27-month concurrent sentences,
for three counts of providing false information to a federally licensed firearms
dealer, in violation of 18 U.S.C. § 924(a)(1)(A). On appeal, Billings raises these
claims: (1) the district court erred by denying his motion to withdraw his guilty
plea; (2) the district court erred by denying his motion for an acceptance-of-
responsibility adjustment, under U.S.S.G. § 3E1.1(a); and (3) the district court
imposed a procedurally unreasonable sentence because it failed to consider all of
the mitigating factors raised by Billings and listed in 18 U.S.C. § 3553(a). After
careful review, we affirm.
We review a district court’s denial of a motion to withdraw a guilty plea for
abuse of discretion. United States v. McCarty, 99 F.3d 383, 385 (11th Cir. 1996).
The good faith, credibility, and weight of the defendant’s representations in
support of the motion to withdraw are issues for the trial court to decide. United
States v. Buckles, 843 F.2d 469, 472 (11th Cir. 1988). We review the district
court’s interpretation of the Guidelines de novo, and its findings regarding the
denial of an acceptance-of-responsibility adjustment for clear error. See United
States v. Coe, 79 F.3d 126, 127 (11th Cir. 1996). The sentencing judge’s
determination regarding a defendant’s acceptance of responsibility “is entitled to
great deference on review.” U.S.S.G. § 3E1.1(a), comment. (n.5).
We review a defendant’s ultimate sentence for reasonableness. United
States v. Booker, 543 U.S. 220, 264 (2005); United States v. Talley, 431 F.3d 784,
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785 (11th Cir. 2005). Under the post-Booker, advisory Guidelines regime, district
courts enjoy significant latitude in imposing criminal sentences. Rita v. United
States, --- U.S. ---, 127 S. Ct. 2456, 2465 (2007); see also Gall v. United States, ---
U.S. ---, No. 06-7949, 2007 WL 4292116, at *7 (U.S. Dec. 10, 2007). The
reasonableness standard of appellate review is akin to abuse of discretion. See
Gall, 2007 WL 4292116, at *7 (“Our explanation of ‘reasonableness’ review in the
Booker opinion made it pellucidly clear that the familiar abuse-of-discretion
standard of review now applies to appellate review of sentencing decisions.”);
Kimbrough v. United States, 552 U.S. ----, 2007 WL 4292040, at *15 (Dec. 10,
2007) (stating that appellate courts must give “due respect to [a] District Court’s
reasoned appraisal” of the proper sentence for a defendant).
The relevant facts are these. On April 25, 2006, a federal grand jury indicted
Billings on three counts of providing false information to a federally licensed
firearms dealer, in violation of 18 U.S.C. § 924(a)(1)(A). Billings entered a non-
negotiated plea of guilty to all three counts and the district court conducted a plea
colloquy. During that colloquy, the court asked Billings, in relevant part, whether
he understood that “by pleading guilty to these charges the Court can sentence you
to five years incarceration on each count.” Billings answered affirmatively and
further stated that he had talked with his attorney about the Sentencing Guidelines
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and understood that the district court would have to consult the Guidelines before
sentencing, but that it was not possible to determine how the Guidelines would
affect his sentence until a Presentence Investigation Report (“PSI”) was completed.
Billings also said that he understood that he would still be bound by his guilty plea
even if his sentence was more severe than he expected.
After finding that Billings’s guilty plea was knowingly, voluntarily, and
intelligently entered, the court accepted the plea and set a sentencing date. The
following exchange then took place between the court and Billings’s counsel:
COURT: All right, Mr. Billings. I assume the government
doesn’t oppose your remaining on bond and you
need to follow the instructions of your attorney and
the probation officer and be back on that date for
sentencing. Have you got any questions? Oh, oh.
I’m not going to lock you up today. What’s the
problem? The government is not going to lock
you up. They waited four years to prosecute you.
COUNSEL: Judge, Mr. Billings, you may have seen his family
here with him. He’s got two young children, a
four month and eighteen month old, and it’s been
weighing heavy on his mind, the possibility of
time and how that will affect his family.
COURT: We are not going to make that decision today, but I
encourage you to stay clean between now and then.
Don’t get arrested.
According to the PSI, information received from two pawn shops in or
around Jonesboro, Georgia revealed that, in 2001 and 2002, Billings purchased
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eight firearms. For each of these purchases, on the ATF Form 4473, Billings
affirmed that he was the actual buyer, and he was not buying the firearms on behalf
of another person. On March 3, 2003, during an interview with authorities,
Billings stated that he had sold three of the firearms to “Calvin” and that the five
others were stolen from him. Three day later, he told authorities that “Calvin” paid
him to purchase all eight firearms. On March 24, 2004, Billings admitted to
authorities that he actually bought 11 or 12 firearms for Chase Manning, and that
his prior statements were untrue because “Calvin” was a fictitious name. Billings
stated that Manning specifically identified the guns he wanted and gave Billings
money to purchase the guns. In January 2005, Billings again admitted to
authorities that Manning recruited him to purchase the firearms, and supplied the
money for the purchases.
The PSI noted that, after his indictment in April 2006, Billings was released
on bond, subject to certain conditions. In November 2006, he tested positive for
marijuana. After two negative tests, he again tested positive in February 2007,
which was one month after the plea colloquy hearing. He subsequently did not
report for a scheduled urine screen in March 2007. The PSI noted that Billings had
begun attending weekly counseling sessions and twice-weekly Narcotics
Anonymous meetings. The PSI also noted that Billings had close family
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relationships, and he lived in his mother’s house with his wife and their two young
children.
The PSI assigned Billings an adjusted offense level of 16, after denying
Billings a 2-level adjustment for acceptance of responsibility because of his failed
drug tests and failure to report for a drug test. With a criminal history category IV,
Billings faced a Guidelines sentencing range of 33 to 41 months. Billings filed
objections to the PSI’s failure to award him an acceptance-of-responsibility
adjustment and to the PSI’s recommendation of a criminal history category IV.
At the sentencing hearing, Billings argued that he deserved an acceptance-
of-responsibility adjustment because he had admitted his responsibility and
cooperated with authorities and had entered a guilty plea. According to Billings,
his positive tests for marijuana were unrelated to the crime at issue, and they were
outweighed by his actions demonstrating acceptance of responsibility. Defense
counsel also noted that Billings was undergoing treatment and attending classes
regarding his prior marijuana use, and all his recent tests had come back negative.
The district court noted that although it could “probably forgive” one
positive test for marijuana, there had been multiple positive tests and Billings had
missed a scheduled test. In adopting the PSI’s offense level computations,
including the denial of the acceptance-of-responsibility adjustment, the district
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court noted that the authorities had trouble acquiring information in their
investigation, and Billings “gave them false statements . . . that made the
investigation take longer.”
The district court sustained Billings’s objection regarding his criminal
history category, and lowered it to a category III, which yielded a Guidelines range
of 27 to 33 months’ imprisonment. The court then invited Billings to present
mitigating evidence on the sentence to be imposed.
Billings’s mother testified on his behalf, describing his positive role in the
family and as a father to his young children. Counsel for Billings then presented
argument on the § 3553(a) factors, urging that a sentence of probation without
incarceration would be sufficient. Specifically, counsel highlighted Billings’s
family situation, including his responsibilities as a father, and that Billings was no
longer inclined to commit criminal conduct. Counsel also stated that Billings’s
recent use of marijuana was due to stress related to this case and the health of his
son. Finally, counsel noted that Billings was undergoing treatment for his
marijuana problem, that Billings’s offense conduct occurred in 2002, and that
Billings had been cooperative and truthful at nearly all stages of the investigation.
The court then heard Billings’s statement, during which he said that he was a
changed man, and that his family was the most important thing in his life.
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The district court imposed sentences of 27 months’ imprisonment for each
count, to be served concurrently, which fell at the low end of the Guidelines range.
In imposing sentence, the court stated that it had considered “the guidelines under
the statute on the defendant’s behalf” and noted that the following factors weighed
in favor of Billings: (1) the time between the offense conduct and sentencing; (2)
the fact that Billings was employed; (3) his family’s support; and (4) his role in
supporting his family and love for his children. Despite these mitigating factors,
however, the court found that a 27-month total sentence was justified in light of
Billings’s prior criminal record, his use of marijuana before sentencing, his lack of
a positive work history, and the offense at issue.
Before the sentencing hearing concluded, Billings personally objected that
he thought that he would not receive any jail time based on the judge’s statements
at his plea hearing. Counsel explained that Billings was referring to the statement
made by the judge after Billings entered his plea and the court accepted it. The
district court responded, “I don’t want any misunderstanding on his part. I’ll allow
him to withdraw his plea if he feels like he has been tricked or manipulated.”
Billings subsequently filed a motion to withdraw his guilty plea. At a
hearing on the motion, Billings argued that the district court’s statements at the end
of the plea hearing gave Billings and his counsel the impression that Billings’s
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final sentence would not involve incarceration. Counsel asserted that this
impression affected the way he and Billings prepared for the sentencing hearing.
The district court denied Billings’s motion to withdraw his guilty plea,
finding that the statement at issue from the plea hearing did not refer to Billings’s
ultimate sentence and did not affect the guilty plea because the plea colloquy
indicated that Billings understood how sentencing would proceed and the
statement was made after Billings’s plea was accepted. The court also noted that it
had made the statement after Billings became emotional, at which point the court
was trying to assure him that it would not revoke his bond or lock him up on that
day. This appeal followed.
First, Billings asserts the district court erred by denying his motion to
withdraw his guilty plea, in which he argued that the district court misled him at
the plea colloquy when the court stated, “I’m not going to lock you up today.
What’s the problem? The government is not going to lock you up. They waited
four years to prosecute you.” Notably, the foregoing statement was made at the
close of the hearing on Billings’s guilty plea, after the court had accepted the plea
as knowingly, voluntarily, and intelligently made.
A defendant may withdraw a guilty plea after the court accepts the plea, but
before it imposes sentence, if the defendant shows “a fair and just reason for
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requesting the withdrawal.” Fed. R. Crim. P. 11(d). In determining whether the
defendant showed a fair and just reason, within the meaning of Rule 11, the district
court may consider the totality of the circumstances surrounding the plea,
including the following factors: (1) whether close assistance of counsel was
available; (2) whether the plea was knowing and voluntary; (3) whether judicial
resources would be conserved; and (4) whether the government would be
prejudiced by the plea withdrawal. Buckles, 843 F.2d at 472 (internal citations
omitted).
The district court conducts a plea colloquy, pursuant to Rule 11, in order to
ensure that a defendant’s guilty plea is knowing and voluntary. United States v.
Hernandez-Fraire, 208 F.3d 945, 949 (11th Cir. 2000). There is a strong
presumption that statements made during the Rule 11 plea colloquy are true.
United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994). For example, we
considered a case where the defendant asked to withdraw his plea because he was
under the mistaken impression that he would receive an 18-month sentence, despite
his statement at the colloquy that he understood that the 18-month sentence was
only a non-binding recommendation. United States v. Gonzalez-Mercado, 808
F.2d 796, 799 (11th Cir. 1987). “To the extent that the appellant did not
understand or failed to note his misunderstanding, the district court cannot
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speculate, but rather must rely solely on the appellant’s sworn statement that he . . .
understood the possible consequences of his guilty plea.” Id. at 799-800. We
found that the district court had not abused its discretion by denying the
defendant’s motion to withdraw because it was reasonable to conclude that the
defendant understood the consequences of his guilty plea. Id. at 800-01.
We discern no abuse of discretion here. From our review of the record, the
district court reasonably concluded, at the end of the plea colloquy, that Billings
understood the range of possible sentences, how sentencing would proceed, and the
other consequences of his guilty plea. At no point did the court promise a non-
custodial sentence. Moreover, Billings never exhibited any confusion at the
change-of-plea hearing regarding the district court’s statements, and the challenged
statements concerning whether Billings would be imprisoned immediately
following the hearing occurred after the district court already accepted his plea.
On this record, the district court did not abuse its discretion by denying Billings’s
motion to withdraw his plea.
We likewise are unpersuaded by Billings’s argument that the district court
erred by denying him an acceptance-of-responsibility adjustment under U.S.S.G. §
3E1.1(a). A defendant is entitled to a two-point decrease to his offense level if he
“clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G.
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§ 3E1.1(a). “The defendant bears the burden of clearly demonstrating acceptance
of responsibility and must present more than just a guilty plea.” United States v.
Sawyer, 180 F.3d 1319, 1323 (11th Cir. 1999).
In determining whether the defendant is entitled to this adjustment, the
district court may consider, among other relevant factors, whether the defendant
truthfully admitted his relevant conduct. See U.S.S.G. § 3E1.1(a), comment.
(n.1(a)). “[A] defendant who falsely denies . . . relevant conduct that the court
determines to be true has acted in a manner inconsistent with acceptance of
responsibility.” Id.
The district court also may consider whether the defendant voluntarily
terminated his criminal conduct after being indicted on the federal charges. Id.,
comment. (n.1(b)). Conduct may be relevant even if unrelated to the offense of
conviction. United States v. Pace, 17 F.3d 341, 343 (11th Cir. 1994). Moreover,
conduct inconsistent with acceptance of responsibility may outweigh a defendant’s
guilty plea and his truthful admission of relevant conduct. U.S.S.G. § 3E1.1(a),
comment. (n.3). Thus, even where a defendant provided authorities with
information, he was not due a § 3E1.1(a) adjustment where evidence showed that
he continued to use cocaine after his arrest on charges unrelated to drug use.
United States v. Scroggins, 880 F.2d 1204, 1205, 1215-16 (11th Cir. 1989).
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The present record indicates that the district court properly considered,
among other factors, Billings’s post-indictment positive marijuana tests, as well as
the drug test he skipped, in denying an adjustment for acceptance of responsibility.
We likewise discern no error in the district court’s consideration of Billings’s pre-
indictment false statements to investigators regarding the true identity of the person
for whom he was purchasing firearms. In short, we are satisfied that the district
court properly exercised its discretion in weighing the relevant factors and denying
the adjustment.
Finally, Billings challenges the reasonableness of his sentence. Billings says
that his sentence was procedurally unreasonable because the district court failed to
properly consider all of the relevant mitigating factors on which he presented
evidence, including that (1) a custodial sentence would harm Billings’s family and
family relationships; (2) a non-custodial sentence would sufficiently reflect the
seriousness of the crime; and (3) a non-custodial sentence would provide him with
education and treatment without harming his family.
A defendant may challenge his sentence based on procedural or substantive
unreasonableness. United States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir.
2006). In its recent Gall decision, the Supreme Court explained that “significant”
procedural errors include errors such as “failing to calculate (or improperly
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calculating) the Guidelines range, treating the Guidelines as mandatory, failing to
consider the § 3553(a) factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sentence -- including an
explanation for any deviation from the Guidelines range.” Gall, 2007 WL
4292116, at *7 (emphasis added); see also United States v. Agbai, 497 F.3d 1226,
1229 (11th Cir. 2007) (holding that when a defendant challenges his sentence
based on the district court’s failure to consider § 3553(a) factors, as applied to him,
he is challenging the procedural reasonableness of his sentence).
In announcing sentence, the district court must give a legally sufficient
statement of reasons under 18 U.S.C. § 3553(c). However, the district court need
not discuss each § 3553(a) factor. Talley, 431 F.3d at 786. Nor is the court
required to “explicitly articulate that it had considered the § 3553(a) factors.”
United States v. Dorman, 488 F.3d 936, 944 (11th Cir. 2007); Rita, 127 S. Ct. at
2468-69 (2007) (inferring district court’s reasoning from context and examination
of whole record). The Supreme Court has held that a lengthy discussion is not
required in the typical case, as long as the sentencing judge “set[s] forth enough to
satisfy the appellate court that he has considered the parties’ arguments and has a
reasoned basis for exercising his own legal decisionmaking authority.” Rita, 127
S. Ct. at 2468 (citation omitted).
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Here, the district court did not impose a procedurally unreasonable sentence
because the record indicates that the court adequately considered Billings’s
arguments and the § 3553(a) factors. The court heard the arguments presented by
counsel for Billings, as well as the statements made on his behalf, and it explicitly
stated that, in imposing sentence, it had considered the statutory factors weighing
in Billings’s favor. On this record, we are satisfied that satisfy the district court
“considered the parties’ arguments and ha[d] a reasoned basis for exercising his
own legal decisionmaking authority.” Rita, 127 S. Ct. at 2468 (citation omitted).
Put simply, Billings has not demonstrated that his sentence is procedurally
unreasonable.
AFFIRMED.
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