United States v. Tico Daktari Holman

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 15, 2008
No. 06-16522 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-80108-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TICO DAKTARI HOLMAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 15, 2008)
Before BLACK, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Tico Daktari Holman appeals his conviction and sentence for possession
with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C.
§ 841(a)(1). Holman asserts two issues on appeal, which we address in turn.
I.
Holman first argues the district court violated Rule 11 of the Federal Rules
of Criminal Procedure when it failed to inform Holman he had the right to continue
in his plea of not guilty, and he had the right of compulsory process for any witness
on his behalf.
Where the defendant neither objects to the plea proceedings nor moves to
withdraw the plea, we review the district court’s compliance with Rule 11 for plain
error. United States v. Monroe, 353 F.3d 1346, 1349 & n.2 (11th Cir. 2003). Plain
error exists only where (1) there is an error; (2) the error is plain or obvious; and
(3) the error affects the defendant’s substantial rights. If those three conditions are
met, a court may correct the error only if “the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. at 1349. Furthermore,
“a defendant who seeks reversal of his conviction after a guilty plea, on the ground
that the district court committed plain error under Rule 11, must show a reasonable
probability that, but for the error, he would not have entered the plea.” United
States v. Dominguez Benitez, 124 S. Ct. 2333, 2340 (2004). “A defendant must
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thus satisfy the judgment of the reviewing court, informed by the entire record, that
the probability of a different result is ‘sufficient to undermine confidence in the
outcome’ of the proceeding.” Id.A district court accepting a guilty plea must address the three core concerns
of Rule 11, which are to ensure “that a defendant (1) enters his guilty plea free
from coercion, (2) understands the nature of the charges, and (3) understands the
consequences of his plea.” United States v. Moriarty, 429 F.3d 1012, 1019 (11th
Cir. 2005). “To ensure compliance with the third core concern, Rule 11(b)(1)
provides a list of rights and other relevant matters about which the court is required
to inform the defendant prior to accepting a guilty plea.” Id. However, where a
plea colloquy fails to address an item expressly required by Rule 11, we generally
uphold the plea so long as the overall plea colloquy adequately addresses the core
concerns of Rule 11. Monroe, 353 F.3d at 1354. During Rule 11 proceedings,
“matters of substance, not form, are controlling.” Id. at 1351.
Holman does not contest, and the record reflects, that the court adequately
addressed the first two Rule 11 core concerns. As for the third core concern, the
district court did not expressly advise Holman of his right to persist in a plea of not
guilty or that by not proceeding to trial, Holman relinquished his right to
compulsory process as required by Rule 11. According to the record, however, the
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district court informed Holman of his right to plead not guilty, and that if he pled
not guilty, he had the right to a trial by jury at which the Government would have
to prove his guilt beyond a reasonable doubt. That statement necessarily implied
that Holman had the right to persist in his plea of not guilty. Additionally, the
district court advised Holman of his right to present witnesses on his own behalf
and cross-examine the Government’s witnesses if he went to trial. Thus, although
the district court’s colloquy did not follow the language of Rule 11 exactly, the
district court did not plainly err because it adequately addressed the substantive
information, that is, the “core concerns,” of Rule 11. Even assuming the district
court’s omissions constitute plain error, Holman has not shown, or even asserted,
that, but for the district court’s failure to inform him of those two rights, he would
not have entered the guilty plea. Accordingly, we affirm Holman’s conviction.
II.
Holman also contends the district court erred by applying the career offender
enhancement to his sentence because the Government failed to prove by a
preponderance of the evidence that Holman had a prior conviction for carrying a
concealed firearm. Holman asserts the ambiguities of the judgment render it
unclear whether he was convicted for a probation violation or for carrying a
concealed firearm. Furthermore, he contends, even if the Government met its
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burden of proof regarding the fact of conviction, Holman contends carrying a
concealed firearm is not a crime of violence.
“We review de novo the district court's application and interpretation of the
sentencing guidelines, and we review factual findings for clear error.” United
States v. Wilks, 464 F.3d 1240, 1242 (11th Cir.), cert. denied, 127 S. Ct. 693(2006) (citations omitted). “[T]he district court’s decision to classify a defendant
as a career offender pursuant to U.S.S.G. § 4B1.1 is a question of law that we also
review de novo.” United States v. Gibson, 434 F.3d 1234, 1243 (11th Cir.), cert.
denied, 126 S. Ct. 2911 (2006).
A district court generally may enhance a defendant’s sentence as a career
offender “if (1) the defendant was at least eighteen years old at the time the
defendant committed the instant offense of conviction; (2) the instant offense of
conviction is a felony that is either a crime of violence or a controlled substance
offense; and (3) the defendant has at least two prior felony convictions of either a
crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). The
government must demonstrate all three elements by a preponderance of the
evidence. United States v. Spell, 44 F.3d 936, 938 (11th Cir. 1995). As Holman
does not dispute the first two elements or that he has a prior felony conviction of a
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controlled substance offense, the only issue before us is whether Holman has a
prior conviction for a crime of violence.
The existence of a prior conviction is a determination that may be found by
the district court. Gibson, 434 F.3d at 1247. For purposes of sentencing, the
district court’s factual findings “may be based on, among other things, evidence
heard during trial, undisputed statements in the PSI, or evidence presented during
the sentencing hearing.” United States v. Ndiaye, 434 F.3d 1270, 1300 (11th Cir.),
cert. denied, 127 S. Ct. 128 (2006). If a defendant, however, challenges one of the
bases of his sentence as set forth in the PSI, the government bears the burden of
establishing the disputed fact by a preponderance of the evidence. Id. Further, “[a]
court may consider any information (including hearsay), regardless of its
admissibility at trial, in determining whether factors exist that would enhance a
defendant’s sentence, provided that the information is sufficiently reliable.”
United States v. Wilson, 183 F.3d 1291, 1301 (11th Cir. 1999) (finding no error
where the district court established the fact of conviction by relying on a PSI, on-
the-record statements of a probation officer, and notes of another probation officer
who had reviewed the municipal court records).
In assessing whether a prior conviction was for a crime of violence, the
district court focuses on the fact of conviction and the statutory elements of that
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conviction. See Gibson, 434 F.3d at 1247 (considering whether prior convictions
were controlled substance offenses under § 4B1.1). “A district court only may
inquire into the conduct surrounding a conviction if ambiguities in the judgment
make the crime of violence determination impossible from the face of the judgment
itself.” Id. at 1248 (quoting Spell, 44 F.3d at 939). As Holman concedes, we have
held that carrying a concealed firearm in violation of Florida law constitutes a
crime of violence for purposes of the career offender classification. United States
v. Gilbert, 138 F.3d 1371, 1372 (11th Cir. 1998).
Holman challenges the fact of conviction by asserting the ambiguities of the
judgment render it unclear whether he was convicted for a probation violation or
for carrying a concealed firearm. Holman’s reliance on Shepard v. United States,
125 S. Ct. 1254, 1263 (2005), and its progeny, therefore, is misplaced because the
restrictions apply only to the “sources a sentencing court may consider to
determine the character of a prior conviction under the ACCA [Armed Career
Criminal Act],” not to a determination regarding the fact of a prior conviction.
United States v. Cantellano, 430 F.3d 1142, 1147 (11th Cir. 2005) (noting that
“[t]he issue in Shepard was whether the Armed Career Criminal Act permitted a
sentencing court to consider police reports and complaint applications to establish
that prior convictions for burglary were violent felonies,” a finding about the
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character of the conviction). Once Holman objected to the finding in the PSI that
he had a prior conviction for carrying a concealed firearm, the Government could
use any reliable evidence to establish the disputed fact by a preponderance of the
evidence. See Ndiaye, 434 F.3d at 1300.
To prove the fact of conviction, the Government submitted the judgment of
conviction, which listed the crime of conviction as “(VOP) CCF,” the offense
statute as Fla. Stat. § 790.01(2), and the offense degree as a third degree felony.
The statute cited in the judgment of conviction criminalizes carrying a concealed
firearm as a third-degree felony. Fla. Stat. § 790.01(2). The Government also
submitted an exhibit which contained numerous computer printouts from the state
court regarding the 1993 docket number referenced in the judgment of conviction.1
The probation officer, Kito Bess, testified regarding the content of the documents.
At one point he indicated the 1997 judgment means Holman was found guilty of a
probation violation for carrying a concealed weapon at that time. Elsewhere in his
testimony, however, Bess indicated that the conduct of carrying a concealed
1
Although Holman challenges the authenticity of the Government’s documents and the
weight afforded the documents by the district court because they were not certified, we decline
to consider this argument because Holman raised it for the first time on appeal in the reply brief.
See United States v. Whitesell, 314 F.3d 1251, 1256 (11th Cir. 2002) (explaining this Court
declines to consider issues raised for the first time in a reply brief).
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firearm occurred in 1993, and Holman received a sentence of probation for that
offense.
The district court did not clearly err in finding that the Government proved
by a preponderance of the evidence that Holman had a conviction for carrying a
concealed firearm. First, the judgment of conviction referenced the Florida statute
pertaining to carrying a concealed firearm. Next, despite the ambiguities in Bess’s
testimony, the documents themselves can be interpreted to support a conclusion
that Holman pled guilty to carrying a concealed firearm in 1994, but adjudication
was withheld when the state court sentenced him to 18 months of probation.
Further, the state court documents could be reasonably interpreted to show that in
1997, when Holman violated his probation for a second time, the state court
revoked the probation, sentenced him to 90 days’ imprisonment, and no longer
withheld adjudication on the original offense of carrying a concealed firearm.
Based on this evidence, the district court did not clearly err in finding the
Government had proven by a preponderance of the evidence that Holman had a
prior conviction for carrying a concealed firearm.
Having found that Holman’s prior conviction was for carrying a concealed
firearm, the district court did not err in finding that his prior conviction qualified as
a crime of violence under U.S.S.G. § 4B1.2. Based on this prior conviction and
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Holman’s undisputed prior conviction for possession of cocaine with intent to
distribute, a controlled substances offense, the district court did not err in
classifying Holman as a career offender pursuant to § 4B1.1.2 Accordingly, we
affirm Holman’s 189-month sentence.
AFFIRMED.
2
Holman’s contention the district court improperly expanded the record on appeal when
it granted the Government’s motion to supplement the record is meritless because the documents
in the supplemental record were in fact supplied to the district court prior to sentencing and
subsequently admitted as exhibits during sentencing. See Fed. R. App. P. 10(e)(2) (stating if
anything material is omitted from the record on appeal by error or accident, the district court
may correct the omission and supplement the record).
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