United States v. Tommie Nathaniel White

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 21, 2008
THOMAS K. KAHN
No. 07-11260
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 06-00086-CR-CG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOMMIE NATHANIEL WHITE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(March 21, 2008)
Before ANDERSON, BIRCH and HULL, Circuit Judges.
PER CURIAM:
Tommie Nathaniel White appeals his convictions for conspiracy to possess
with intent to distribute cocaine and crack cocaine, and possession with intent to
distribute cocaine. He also appeals his 400-month sentence as to each of those
convictions. White argues that the district court erred in limiting the scope of his
cross-examination of certain witnesses and in permitting questions by the
government bolstering the credibility of those witnesses. He asserts that this
deprived him of a fair trial in violation of the Sixth Amendment. He also contests
his sentence, arguing that (1) the court erred in applying the 100-to-1 crack-to-
powder cocaine disparity in calculating his sentence; (2) the court misapplied a
three-level manager-supervisor enhancement; and (3) his 400-month below-
Guidelines sentence was unreasonble. We AFFIRM.
I. BACKGROUND
White was indicted on four counts: (1) conspiring to knowingly possess with
intent to distribute more than 5 kilograms of cocaine and more than 50 grams of
crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count 1); (2) knowingly
possessing with intent to distribute approximately 500 grams of cocaine, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) (Count 2); (3) knowingly possessing
with intent to distribute approximately 4.5 grams of cocaine, in violation of 21
U.S.C. § 841(a)(1), (b)(1)(C) (Count 3); and (4) knowingly possessing with intent
to distribute approximately two ounces of cocaine, in violation of 21 U.S.C. §
2
841(a)(1), (b)(1)(C) (Count 4).1 White pleaded not guilty and the government filed
an information indicating that White had been previously convicted of another
drug offense and was therefore subject to enhanced penalties at sentencing.
Before trial, the government filed a motion in limine, informing the court
that one of its witnesses, Felton Denham, had taken a polygraph exam and had
been found to be deceptive about a single statement made in connection with
“another subject, unrelated to his anticipated testimony against” White. Doc. 24 at
1. The government requested that White be prohibited from referring to the
polygraph exam at trial. Id. White did not respond before trial.
During its opening statement at trial, the government noted that several
witnesses had entered into “agreement[s] to cooperate and to provide information
to the government.” Doc. 69 at 4. The government later stated that “just because
they’ve entered into an agreement with the government does not immediately
discount their testimony,” but made no reference to the standard truth-telling
provisions in the plea agreements. Id. at 6. White made no objection during the
government’s opening statement. During White’s opening statement, he stated that
the government’s only evidence would stem from drug dealers “who are wanting to
get out of jail or wanting to cut their sentence. And they know what they have to
1
The indictment also contained a forfeiture provision, which is not at issue in the present
appeal.
3
do to do it.” Id. at 8. White’s counsel conceded that White had been in trouble
before, but stated “[t]hat was then. This is now. But I will submit to you that
that’s what makes him an easy target for these people. They had to come up with
somebody, and here he sits.” Id. at 8-9.
The government called ten witnesses: one law enforcement agent and nine
witnesses who had been convicted and were cooperating with the government.
The agent, Tommy Loftis, testified that he helped execute controlled purchases of
cocaine and crack cocaine from Denham. In the process of examining Denham’s
phone records from a period of several months, Loftis had discovered that White
had called Denham 260 times and Denham had called White 658 times. Doc. 47 at
25-26, 30.
After Loftis finished testifying, the government sought leave to introduce
into evidence the cooperating witnesses’ plea agreements. White objected to
admitting the factual resume portions of the agreements, but not the plea
agreements themselves. White described the factual resumes as “hearsay
statements saying this is what happened, when in fact it is not an issue in this
case.” Id. at 51.
Clarence Reed then testified that he had purchased crack cocaine from White
on numerous occasions in 2003. He also testified that Denham had purchased
4
drugs from White. Reed described a trip to Atlanta he had made in 2003 with
White and a female courier, during which they had purchased $10,000 worth of
drugs from two females and had then duct taped the drugs to the female courier for
transport back to Alabama. During cross-examination, defense counsel asked Reed
whether he had promised to be completely truthful in his plea agreement and, after
Reed acknowledged that he had, asked Reed why he had not mentioned White’s
drug dealing during his initial debriefing interview with law enforcement.
Before Denham testified, the district court granted the government’s motion
in limine, ruling that “the probative value [of evidence related to the polygraph
exam] is way overweighed by confusion on the issue of everything else.” Id. at 87-
88. Defense counsel agreed not to raise the polygraph exam directly, but asked for
permission to ask Denham whether he had violated the terms of his plea
agreement. The district court explained that this would indirectly raise the
polygraph results and ruled against White, stating “I don’t think that’s admissible
simply because the government doesn’t have an opportunity to go back and explain
what that is and it’s left for the jury to speculate. And so I don’t think . . . you need
to go into that.” Id. at 88. White did not raise a Confrontation Clause objection at
that time.
During direct examination of Denham, the government questioned him
5
about his plea agreement and the following dialogue occurred:
[Government]: And does this plea agreement provide you with the
opportunity to cooperate with the government?
[Denham]: Yes, ma’am.
[Government]: And what are you supposed to do in cooperating
with the government?
[Denham]: Tell the truth and tell the role that I played, that I
took place in.
[Government]: And have you provided the government with
information about your role in this case?
[Denham]: Yes, ma’am.
Id. at 88-90. White raised no objection and Denham proceeded to discuss his drug
dealings with White and others. The government later asked whether Denham’s
plea agreement required that he tell the truth and Denham acknowledged that it did.
White did not object. Denham testified that he had purchased drugs regularly from
White beginning in 2003. After White returned from drug buying trips to Atlanta
– once with Reed and once with an unidentified woman – the drugs were divided
at the home of O.G., one of White’s associates. White had also taught Denham
how to convert cocaine into crack cocaine.
During cross-examination, Denham confirmed that, after he was arrested, he
had promised to cooperate fully with the investigation and to tell “the whole truth.”
6
Id. at 121. The following dialogue then occurred:
[White’s counsel]: You lied, didn’t you?
[Denham]: No, sir.
[White’s counsel]: Okay. You told Mr. Loftis the whole truth; is that
right?
[Denham]: Yes, sir.
[White’s counsel]: Beginning in December of 2004?
[Denham]: Yes, sir.
Id. Denham then testified that, although the summation of his interview with
Agent Loftis did not mention White, he and White had been involved with drug
dealing.
When White attempted to inquire about the factual resume in Denham’s plea
agreement, the government objected on hearsay grounds. White responded that the
resume could be used to demonstrate a prior inconsistent statement because
Denham had testified to engaging in illicit activity with White, but the resume did
not mention White. The district court ruled that White could not continue asking
such questions because the resume contained only an acknowledgment by Denham
that the government could prove the facts contained within. The following
dialogue then occurred:
[White’s counsel]: I want to ask him: “Did you sign this? Was there
7
some other information you wanted to put in here
or not want to put in here? Was this what you pled
guilty to?”
[The Court]: No. This does not purport to be a statement of his
nor is this what he pled guilty to. This is what the
government said they could prove to support his
conviction and doesn’t purport to be everything
they could prove. So using it for that purpose I
think is improper. . . .
. . . You can certainly establish that he hasn’t made
any statement about Mr. White before he entered
his guilty plea, if that in fact is true.
Id. at 132-33. White did not raise a Confrontation Clause objection. White
subsequently asked Denham whether Denham had mentioned his dealings with
White at the time he pleaded guilty and he responded that he had not. Denham
indicated that he had first mentioned White to police approximately 13 months
after his guilty plea.
Charles Thomas testified next that he had purchased cocaine and crack
cocaine from White. According to Thomas, O.G. served as a “runner” and did
drug business errands for White. Id. at 147-48. Thomas was not asked whether he
had promised to testify truthfully pursuant to his plea agreement or whether he had
fully complied with the agreement’s terms.
Alfred James testified to purchasing marijuana, cocaine, and crack cocaine
from White until late 2005. According to James, O.G. ran errands for White.
8
James also stated that White had spoken to Denham “about getting his money right
so he could . . . make the trip” to Atlanta. Id. at 175. During cross-examination,
James testified that he had not discussed his dealings with White until his second
meeting with Agent Loftis. Jones was not asked whether he had promised to
testify truthfully pursuant to his plea agreement, although he was asked on redirect
whether the plea agreement contained his only agreement with the government.
Roderick Gulley, a cousin of White’s, testified that he purchased cocaine
from White several times in 2005. During cross-examination, Gulley testified that
he had first told police about White less than a month earlier.
Seymour Irby testified that he had helped Denham distribute cocaine and
crack cocaine. Irby observed Denham purchase 500 grams of cocaine from White
inside Denham’s trailer. An associate of White’s, “[a] tall guy named Ali,” was
also present. Doc. 48 at 229. On redirect, Irby stated that his plea agreement
provided for punishments in the event that he testified untruthfully.
Douglas Hill testified that he had sold marijuana, codeine, promethazine,
and cough syrup to White via a third party. He had purchased cocaine, crack
cocaine, and marijuana directly from White and had acquired approximately one
kilogram of crack cocaine in total. Id. at 257.
Terrance Dortch testified that he had purchased drugs from White and that
9
White once showed him how to cook crack cocaine. During cross-examination,
White’s counsel asked whether Dortch had signed a factual resume as part of his
plea agreement. The district court sustained the government’s objection to this line
of questioning.
Phamous Hobbs testified that he had purchased cocaine and crack cocaine
from White on numerous occasions and at several locations, including at the home
of a cousin of Hobbs. White would give the cousin “a little something for calling”
him about Hobbs’s interest in purchasing drugs. Id. at 307. Dortch also purchased
drugs from White at the home of Hobbs’s cousin. During cross-examination,
White asked Hobbs whether he had signed a factual resume as part of his plea
agreement and Hobbs answered affirmatively.
After the government rested, despite his previous objection to their
admission, White attempted to introduce into evidence the factual resumes of
Denham, Dortch, and Hobbs. The court denied the request, explaining that it still
ruled that “those [we]re not statements, they [we]re simply factual resumes
prepared by the government that the defendants agreed the government could
prove in relation to their particular case at the time they were pleading guilty.” Id.
at 327. White did not raise a Confrontation Clause objection. White called several
witnesses during his case-in-chief, but declined to testify on his own behalf. The
10
government called Agent Loftis in rebuttal.
During its closing argument, the government noted that the evidence
supporting Count 2 had been established by Irby. The government also stated that
the plea agreements had been put into evidence and the jury would be able to
review them and “see all of the conditions and the consequences that result from
those plea agreements.” Doc. 70 at 12. The government observed that the plea
agreements “create[d] the need for those witnesses, the absolute necessity for them
to be truthful . . . .” Id. at 13. White’s counsel did not object. During White’s
closing, defense counsel stated that “[y]ou couldn’t believe these people” and that
“if it’s come the time in our society when we bring this type of evidence in here
and we come in here and stand in front of our citizens and say convict this person
of this evidence, you might as well burn the courthouse down because there’s no
justice anymore . . . .” Id. at 32, 33. In rebuttal, the government stated that Agent
Loftis had years of experience and was “not going to be just suckered.” Id. at 38.
The government also explained that Agent Loftis was testifying in the case because
“[h]e believe[d] in this case.” Id. at 40. White’s counsel did not object.
While waiting for the jury to reach a verdict, White’s counsel stated, “Judge,
we enjoyed trying the case with you. It was a fair trial and we enjoyed trying it.”
Doc. 48 at 412. White was ultimately convicted on Counts 1 and 2, and acquitted
11
of Counts 3 and 4.
Before sentencing, a probation officer prepared a presentence investigation
report (“PSI”), setting White’s base offense level at 38 because his offense
involved more than 1.5 kilograms of cocaine base. See U.S.S.G. § 2D1.1(c)(1)
(2005). Because a dangerous weapon was involved, two levels were added under §
2D1.1(b)(1). Three levels were then added on the ground that White was a
manager or supervisor of criminal activity that involved five or more participants
or was otherwise extensive. See § 3B1.1(b). White, a career offender, was also
placed in criminal history category VI based on his criminal history points. With
an adjusted offense level of 43, and a criminal history category of VI, White’s
resulting Guidelines range was life imprisonment.
Prior to sentencing, White raised several objections to the PSI, only one of
which is relevant to the present appeal – that application of the 100-to-1 crack-to-
powder cocaine sentencing disparity is irrational. The district judge addressed this
objection at sentencing by way of the following interchange:
[The Court]: What I would like to do, Mr. Madden, is first
calculate the guideline –
[White’s Counsel]: Yes
[The Court]: – and get your objections to that.
[White’s Counsel]: Yes, that’s fine.
12
[The Court]: Okay. And then we’ll deal with any other
arguments you have about what is a reasonable
sentence in this case.
[White’s Counsel]: Yes
[The Court]: So insofar as your 100-to-1 ratio is an objection to
the way the guidelines are calculated, I overrule
that objection based upon the current state of the
law.
Doc. 71 at 3.
At sentencing, White also objected to the managerial role enhancement
imposed pursuant to§ 3B1.1(b). White argued that the government had
mischaracterized buyer-seller relationships as conspiratorial relationships, and that
White had not supervised five individuals. The district court found that the
adjustment was proper because even if Denham’s drug-dealing organization were
excluded from the calculation, at least five individuals – including White, Reed,
Denham, O.G. and the female courier – were involved in one of the trips to
Atlanta “and that the activity was otherwise extensive.” Doc. 71 at 10-11. After
discussing and ruling on these, and the government’s objections, the district court
implicitly adopted the Guidelines calculations made by the probation office.
Throughout his calculations of the Guidelines range, the district court reminded
counsel that the guideline calculation “doesn’t say anything about the
13
reasonableness of it.” Doc. 71 at 6.
After calculating the Guidelines range, the district court asked White’s
counsel to present his argument as to “what [would be] a reasonble sentence.” Id.
at 15. White’s counsel argued that the sentence was skewed based on the 100-to-1
crack-to-powder cocaine sentencing disparity, asserting that imposing a life
sentence on these facts was “crazy” and “the essence of unreasonableness.” Id. at
16. He requested a sentence of 20 years, the statutory minimum.
After White’s sister spoke on his behalf, White protested his innocence
stating that he “just couldn’t plea out to something [he] didn’t do” and that he had
not even recognized four of the witnesses. Id. at 18-19. Pointing out that White
had demonstrated no remorse for his actions, the government requested the
imposition of a life sentence and noted that if White were to serve one year “for
every life that he wrecked by peddling crack cocaine in this town, 30 years [would
not be] enough.” Id. at 21.
Having listened to the arguments of both parties and stating that it had
considered the statutory purposes of sentencing and the Guidelines, the district
court found “that in this case the guidelines are too high.” Id. at 22. The district
court instead sentenced White to 400 months on each count of conviction, to be
served concurrently. The court explained that although it did not “believe a life
14
sentence to be appropriate,” a 400-month sentence as to each count was reasonable
and was what was required “to reflect the seriousness of the offense and to promote
respect for the law and to provide a just punishment and to afford adequate
deterrence to criminal conduct . . . especially to protect the public from further
crimes since [White’s] first round in the federal penitentiary [had] not seem[ed] to
slow [him] down.” Id. at 22-23. The court particularly called attention to the fact
that White “[had]n’t miss[ed] a beat when [he] came out of prison going right back
into dealing.” Id. at 22. White was also sentenced to ten years of supervised
release on Count 1 and eight years on Count 2, to be served concurrently, and was
ordered to pay a $200 special assessment. White raised no new objections. He has
timely appealed both his conviction and his sentence.
On appeal he argues that the cumulative effect of the following evidentiary
errors deprived him of the constitutional right to a fair trial: (1) the district judge’s
preventing him from questioning Denham about whether he had violated the terms
of his plea agreement; (2) the district judge’s preventing him from questioning
Denham, Dortch, and Hobbs about the factual resumes underlying their plea
agreements; and (3) the government’s bolstering of witnesses during its opening
statement and closing argument, and questioning them about whether their plea
agreements required them to testify truthfully. He also protests his sentence on the
15
grounds that (a) the district court improperly applied the three-level manager
supervisor enhancement pursuant to U.S.S.G § 3B1.1(b); (b) the district court erred
by applying the 100-to-1 crack-to-powder cocaine sentencing disparity; and (c) a
400-month sentence is unreasonable in his case.
II. DISCUSSION
A. Trial/Conviction
1. Scope of Cross-Examination - Denham
White first argues that being prevented from questioning Denham about
whether he believed he had violated his plea agreement (by lying during a
polygraph examination) prevented the jury from understanding that the plea
agreement’s requirement of truthfulness was not a guarantee.2 A “district court has
discretionary authority to limit cross-examination,” but “must permit sufficient
cross-examination to satisfy the [C]onfrontation [C]lause of the sixth amendment.”
United States v. Burke, 738 F.2d 1225, 1227 (11th Cir. 1984). The [C]onfrontation
[C]lause “is satisfied where sufficient information is elicited from the witness
2
White has not challenged the evidentiary ruling, apparently conceding that the district court
did not abuse its discretion by excluding evidence of the polygraph exam specifically. See United
States v. Piccinonna, 885 F.2d 1529, 1536 (11th Cir. 1989) (en banc) (clarifying that polygraph
evidence is inadmissible in our circuit absent a stipulation by both parties as to the circumstances
of the test and the scope of admissibility, unless it is used to impeach or corroborate testimony at
trial, and then there must have been adequate notice provided to the opposing party of the intended
use). Neither party argues that any of the prerequisites for admission of polygraph evidence are met
in this case.
16
[such that] the jury can adequately gauge the witnesses’ credibility.” Id. Where
the defendant fails to “lodge a timely Confrontation Clause objection” before the
district court, review is for plain error. United States v. Arbolaez, 450 F.3d 1283,
1291 (11th Cir. 2006) (per curiam). An appellate court may, in its discretion,
correct plain error where there is “(1) error, (2) that is plain, and (3) that affects
substantial rights . . . but only if (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id.
White raises his Confrontation Clause challenge for the first time on appeal,
and so our review is for plain error. See id. At trial, White’s counsel was able to
ask Denham several times whether Denham had told the investigating agent the
whole truth, to which Denham responded that he had. Although White argues that
a concession by Denham that he believed he had violated his plea agreement would
have pointed out to the jury that closer scrutiny of his credibility was required
(since the violation might have caused him to want to curry favor with the
government by lying about White), Denham’s response that he had told the whole
truth to the investigating officer demonstrates that he would not have made any
such concession. As White concedes, because Denham denied ever having lied,
the district court’s ruling on the motion in limine – which has not been challenged
– foreclosed any further inquiry into the matter. See Reply Br. at 3-4. White’s
17
attorney was able to elicit the same information by way of alternative questioning.
Further, the jury was exposed to facts sufficient to evaluate Denham’s credibility,
specifically that he was a drug dealer and that he had not mentioned White’s name
to the government until 13 months after his guilty plea. Thus, the Confrontation
Clause was satisfied and there was no error.3 See Burke, 738 F.2d at 1227.
2. Factual Resumes
Despite having objected to their admission at an earlier point in the trial,
White next argues that the factual resumes (i.e., the sections of the witnesses’ plea
agreements describing the facts provable by the government that would support
their convictions) should have been admitted because they were incorporated into
the plea agreements, were admissible under Federal Rule of Evidence 106, were
relevant to credibility, and were not hearsay. “We review evidentiary rulings for
an abuse of discretion.” United States v. Henderson, 409 F.3d 1293, 1297 (11th
3
It is not clear whether White also argues that the exclusion of Denham’s testimony as to
whether he had breached his plea agreement constitutes reversible error apart from any
Confrontation Clause issue. To the extent that he does so argue, however, we find no error. To
preserve an objection to the district court’s exclusion of evidence, the “substance of the evidence
[must be] made known to the court by offer or [be] apparent from the context in which questions
were asked.” Proctor v. Fluor Enters., Inc., 494 F.3d 1337, 1350 (11th Cir. 2007). We then review
an exclusion of evidence for abuse of discretion. Id. at 1349. If there was an abuse of discretion,
we reverse only if the exclusion of evidence affected a substantial right. Id.
Because White’s attorney explained to the judge exactly what evidence he wanted to
introduce and why, the objection is preserved. However, as the judge explained, allowing a question
as to the status of Denham’s plea agreement would have required indirect reference to the properly
excluded polygraph evidence. Accordingly, particularly in light of the fact that White’s attorney
was still able to elicit a response to a similar question, we find no abuse of discretion in the
exclusion. Thus, we find no error.
18
Cir. 2005), cert. denied, 126 S. Ct. 1331 (2006). “An erroneous evidentiary ruling
will result in reversal only if the resulting error was not harmless.” United States
v. Hands, 184 F.3d 1322, 1329 (11th Cir. 1999). An error is harmless if it did not
have a substantial influence on the outcome and the evidence without the error is
sufficient to support the conviction. Id.
Relevant evidence is “evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.” Fed. R. Evid. 401.
Although the balance should always be “struck in favor of admissibility,” United
States v. Edouard, 485 F.3d 1324, 1344 n.8 (11th Cir. 2007) (citation omitted),
relevant evidence may be excluded if its probative value is substantially
outweighed by certain factors such as the dangers of “unfair prejudice, confusion
of the issues,” or potential to mislead the jury, or, “considerations of undue delay,
waste of time, or needless presentation of cumulative evidence.” Fed. R. Evid.
403; see also Holmes v. South Carolina, 547 U.S. 319, 326-27, 126 S. Ct. 1727,
1732 (2006).
White’s only purpose in introducing the factual resumes was to demonstrate
that the witnesses had not immediately informed the government of their
connections to White and, therefore, that their testimony as to White lacked
19
credibility. Even without the resumes, during his cross-examination of these
witnesses, White’s defense counsel was permitted to ask whether and why they had
each delayed in informing the government about their dealings with White. None
of them denied having done so. Therefore, the resumes constituted cumulative
evidence and need not have been admitted. See Fed.R.Evid. 403. There was no
error.
3. Truth-telling Provisions - Bolstering
White also argues that the district court erred in allowing the government to
introduce and discuss the truth-telling provisions of its witnesses’ plea agreements.
Although we have held that “the mere admission in evidence of a plea agreement
does not constitute bolstering by a prosecutor . . . the clauses of the plea agreement
in which the witness promised to testify truthfully should be redacted before the
document is admitted in evidence unless the admission of the plea agreement is not
questioned.” United States v. Hilton, 772 F.2d 783, 787 (11th Cir. 1985). If a
witness’s credibility is attacked during cross-examination then the government
may show the witness’s promise to testify truthfully. Id.
Because White made no objection to the admission of the plea agreements,
any contention that the truth-telling portions of the agreements should have been
redacted is meritless. See id.; Doc. 47 at 51. White also objects to the
20
government’s emphasis on the truth-telling portions of those agreements in
questioning its witnesses. Because White attacked the credibility of the witnesses
during his opening statement, the district court did not err in allowing the
government to introduce the language on direct examination of its witnesses.4 See
Hilton, 772 F.2d at 787; see also United States v. Delgado, 56 F.3d 1357, 1368
(11th Cir. 1995) (“[I]f defense counsel attacks a witness’s credibility during
opening the prosecutor may rehabilitate the witness on direct examination.
Specifically, a prosecutor may ‘elicit testimony regarding the truth-telling portion
of a cooperation agreement during direct examination.’”) (citation omitted).
4. Prosecutorial Misconduct-Vouching
Finally, with respect to his convictions, White argues that the district court
allowed the government improperly to vouch for the credibility of agent Loftis
during its closing argument. “Absent a contemporaneous objection, the propriety
of the Government's closing argument and alleged prosecutorial misconduct in
improperly vouching for a witness’ credibility are reviewed under a plain error
standard.” United States v. Newton, 44 F.3d 913, 920 (11th Cir. 1994). We
reverse a defendant’s conviction on the basis of prosecutorial misconduct only
where the prosecutor’s remarks “(1) were improper and (2) prejudiced the
4
The record shows that the government did not mention the truth-telling provisions in the
course of its opening statement.
21
defendant’s substantive rights.” United States v. Hernandez, 145 F.3d 1433, 1438
(11th Cir. 1998); see also United States v. Abraham, 386 F.3d 1033, 1036 (11th
Cir. 2004) (per curiam) (explaining that prosecutorial misconduct justifies a
reversal of a defendant’s conviction only where the defendant’s substantial rights
may have been prejudiced “in the context of the entire trial in light of any curative
instruction”). “When reviewing a defendant’s ‘vouching’ claim, we examine
whether (1) the prosecutor placed the prestige of the government behind the
witness by making explicit personal assurances of the witness’s credibility, or (2)
the prosecutor implicitly vouched for the witness’s credibility by implying that
evidence not formally presented to the jury supports the witness’s testimony.”
United States v. Arias-Izquierdo, 449 F.3d 1168, 1177-78 (11th Cir. 2006). “The
prohibition against vouching does not forbid prosecutors from arguing credibility,
which may be central to the case; rather, it forbids arguing credibility based on the
reputation of the government office or on evidence not before the jury.” United
States v. Hernandez, 921 F.2d 1569, 1573 (11th Cir. 1991).
“In order to assess the prejudicial impact of a prosecutor’s statements, we
must evaluate them in the context of the trial as a whole and assess their probable
impact on the jury.” Hernandez, 145 F.3d at 1438. To meet the substantial
prejudice prong, the improper comments must have “so infect[ed] the trial with
22
unfairness as to rise to the level of a denial of due process.” United States v.
Eyster, 948 F.2d 1196, 1207 (11th Cir. 1991).
As discussed, White was able to counter any argument the government may
have made that the plea agreements guaranteed the truthfulness of the nine
cooperating witnesses by pointing out their criminal histories and the delay of each
in informing the government of their connections to White. Although, in her
closing argument, the prosecutor did argue that Loftis was credible (after the
credibility of all government witnesses had been made the focus of the defendant’s
closing argument), she did not suggest that the jury ought to find him credible
because he was a government agent or because the government found him credible.
Instead, the prosecutor reminded the jury of Loftis’s lengthy experience as an agent
and of the details of his investigation of the case, referring only to evidence already
admitted at trial. Even if the government had improperly vouched for Loftis’s
credibility, the testimony of the nine other government witnesses and the cell
phone log evidence connecting Denham with White was sufficient that, even if
there were an error, it did not affect White’s substantial rights and did not so infect
the trial with unfairness as to make the resulting convictions a denial of due
process. See Arbolaez, 450 F.3d at 1291; Eyster, 948 F.2d at 1207. Accordingly,
we discern no reversible error.
23
5. Cumulative Effect
“It is true that the cumulative effect of several errors that are harmless by
themselves could so prejudice the defendant’s right to a fair trial that a new trial
might be necessary.” United States v. Preciado-Cordobas, 981 F.2d 1206, 1215
n.8 (11th Cir. 1993). “In addressing a claim of cumulative error, we must examine
the trial as a whole to determine whether the appellant was afforded a
fundamentally fair trial.” United States v. Calderon, 127 F.3d 1314, 1333 (11th
Cir. 1997). However, where there is no error or only a single error, “there can be
no cumulative error.” See United States v. Waldon, 363 F.3d 1103, 1110 (11th
Cir. 2004) (per curiam) (citation omitted).
As discussed, we have found no individual errors, harmless or otherwise.
Further, even if the government’s vouching for Loftis’s credibility had constituted
harmless error, it would only be a single error and thus could not constituted
cumulative error. Id.
B. Sentencing
After Booker, we review sentences for reasonableness. United States v.
Booker, 543 U.S. 220, 261, 125 S. Ct. 738, 765 (2005). “[A] sentence may be
reviewed for procedural or substantive unreasonableness.” United States v. Hunt,
459 F.3d 1180, 1182 n.3 (11th Cir. 2006). A sentence is procedurally
24
unreasonable if it stems from a procedure that failed to follow the requirements of
Booker – e.g., if the district court does not consider the 18 U.S.C. § 3553(a)
factors or relies on an impermissible factor. Id. at 1182. A sentence may be
substantively unreasonable even if it is procedurally reasonable. Id. at 1182 n.3.
Finally, when reviewing a sentence imposed by the district court, we must first
ensure that the district court correctly calculated the guideline range. United States
v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005) (per curiam).
1. Guidelines Calculation - Base Offense Level
White first challenges the district court’s calculation of his Guidelines range.
The district court imposed a base offense level of 38 based upon its finding that
White had been involved with more than 1.5 kilograms of crack cocaine.5 White
argues that the guideline in question, U.S.S.G. §2D1.1(c)(1) (2005) was
“unjustifably harsh.” Appellant’s Br. at 22. Essentially, White’s argument does not
concern the calculation, but the content of the guideline at issue at the time of his
sentencing.6 Because the district court is bound first correctly to calculate the
5
On appeal, White does not challenge this finding of fact regarding quantity.
6
In November 2007, the Sentencing Commission amended § 2D1.1(c)(1). Under the
amended guideline, an offense such as White’s, involving 1.5 or more kilograms of crack-cocaine
would have generated a base offense level of 36 rather than 38. See § 2D1.1(c)(1) (2007). On 11
December 2007, the Sentencing Commission made this amended guideline retroactive as of 3 March
2008. Sentencing Commission News Release, http://www.ussc.gov/PRESS/rel121107.htm (last
visited Feb. 19, 2008). Accordingly, White may file a motion with the district court requesting a
reduction in his sentence, if appropriate, pursuant to 18 U.S.C. § 3582(c)(2).
25
Guidelines range, and because the court found that White’s offense had involved
1.5 kilograms or more of crack cocaine, the court’s imposition of a base offense
level of 38 at the time of White’s sentencing in March 2007 was without error. See
Winingear, 422 F.3d at 1245.
2. Guidelines Calculation - Managerial Role Enhancement
White next argues that the district court improperly applied a three-level
increase to his base offense level, pursuant to U.S.S.G. § 3B1.1(b), based upon its
finding that White was a manager or supervisor. The district court’s determination
of a defendant’s role in an offense is reviewed for clear error and the application of
the Guidelines is reviewed de novo. United States v. Njau, 386 F.3d 1039, 1041
(11th Cir. 2004) (per curiam). “The government bears the burden of proving by a
preponderance of the evidence that the defendant had an aggravating role in the
offense.” United States v. Yeager, 331 F.3d 1216, 1226 (11th Cir. 2003).
A three-level enhancement may be applied under U.S.S.G. § 3B1.1(b), “[i]f
the defendant was a manager or supervisor (but not an organizer or leader) and the
criminal activity involved five or more participants or was otherwise
extensive . . . .” “A ‘participant’ is a person who is criminally responsible for the
commission of the offense, but need not have been convicted.” U.S.S.G. § 3B1.1,
comment. (n.1) (2005). In Njau, we held that the defendant in a social security
26
fraud scheme exercised supervisory authority over at least one person where, inter
alia, he recruited two individuals to receive social security cards that were to be
ultimately issued to illegal aliens. Njau, 386 F.3d at 1040-41. We determined that
both of those individuals were participants. Id. at 1041. “In a drug distribution
case . . . the management enhancement is appropriate for a defendant who arranges
drug transactions, negotiates sales with others, and hires others to work for the
conspiracy.” United States v. Matthews, 168 F.3d 1234, 1249 (11th Cir. 1999).
The factors that a court should consider in determining the nature of the
defendant’s role include:
[T]he exercise of decision making authority, the nature of
participation in the commission of the offense, the recruitment of
accomplices, the claimed right to a larger share of the fruits of the
crime, the degree of participation in planning or organizing the
offense, the nature and scope of the illegal activity, and the degree of
control and authority exercised over others.
U.S.S.G. § 3B1.1, comment. (n.4).
“In assessing whether an organization is ‘otherwise extensive,’ all persons
involved during the course of the entire offense are to be considered. Thus, a fraud
that involved only three participants but used the unknowing services of many
outsiders could be considered extensive.” U.S.S.G. § 3B1.1, comment. (n.3).
Criminal activity may be “otherwise extensive” only if at least one other
participant is involved. United States v. Walker, 490 F.3d 1282, 1301 (11th Cir.
27
2007).
The evidence at trial showed that White exercised supervisory authority over
at least two individuals: an errand runner whose home was used for drug
distribution (O.G.), and the female courier to whom drugs were duct-taped to avoid
detection. In addition to those two individuals and White, at least five other
individuals were also involved in the offense: Denham, two of the other witnesses
at trial, and the two females who sold the drugs to them in Atlanta. Furthermore,
White arranged drug transactions, negotiated sales, and hired others to work for the
conspiracy. See Matthews, 168 F.3d at 1249. Therefore, the district court did not
err in concluding that White was a manager or supervisor and that the criminal
activity involved five or more participants or was otherwise extensive. See
U.S.S.G. § 3B1.1, comment. (n.1); Njau, 386 F.3d at 1041.
3. Reasonableness of Sentence
White also argues that the 100-to-1 crack-to-powder cocaine disparity in the
Sentencing Guidelines made the 400-month sentence imposed upon him
unreasonable. Since White’s sentencing, the Supreme Court has issued its opinion
in Kimbrough v. United States, __ U .S.__, 128 S. Ct. 558 (2007). At issue in
Kimbrough was a district court decision to vary below the advisory Guidelines
range based on a finding that the Guidelines provided a sentence greater than
28
necessary to accomplish the sentencing goals advanced in 18 U.S.C. § 3553(a).
The Court held that “the cocaine Guidelines, like all other Guidelines, are advisory
only,” and that “[t]he judge may determine . . . in [a] particular case, a
within-Guidelines sentence is ‘greater than necessary’ to serve the objectives of
sentencing. In making that determination, the judge may consider the disparity
between the Guidelines’ treatment of crack and powder cocaine offenses.” Id. at
__, 128 S. Ct. at 564. The Supreme Court concluded that the district court had
“appropriately framed its final determination in line with § 3553(a)’s overarching
instruction to ‘impose a sentence sufficient, but not greater than necessary’ to
accomplish the sentencing goals advanced in § 3553(a)(2).” Id. at __, 128 S. Ct. at
575.
Here, just as in Kimbrough, the district court sentenced White below the
advisory guidelines range, on the ground that the advisory range was “too high” to
accomplish the purposes of sentencing. Doc. 71 at 22. Accordingly, we find no
error based on Kimbrough. The sentence is thus procedurally reasonable.
Because White has generally challenged the reasonableness of his sentence
we also review the sentence in light of the 18 U.S.C. 3553(a) factors to determine
whether the sentence fails to achieve the purposes of sentencing set forth in that
statute. United States v. Martin, 455 F.3d 1227, 1237 (11th Cir. 2006). We review
29
only the final sentence for reasonableness, rather than each individual decision
made during the sentencing process. Winingear, 422 F.3d at 1245.
“[T]the familiar abuse-of-discretion standard of review now applies to
appellate review of sentencing decisions.” Gall v. United States, __ U.S. __, __,
128 S. Ct. 586, 594 (2007); see also Kimbrough, __ U.S. at __, 128 S. Ct. at 576
(stating that appellate courts should give “due respect to [a] District Court's
reasoned appraisal” of the proper sentence for a defendant). “[T]here is a range of
reasonable sentences from which the district court may choose.” United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005) (per curiam). Although, there are
“sentences outside the range of reasonableness that do not achieve the purposes of
sentencing stated in § 3553(a) and that thus the district court may not impose,”
Martin, 455 F.3d at 1237, “[a] district court may impose a sentence that is either
more severe or lenient than the sentence [we] would have imposed.” Talley, 431
F.3d at 788. Although “[w]e do not in this circuit presume reasonable a sentence
within the properly calculated Guidelines range,” the Supreme Court has upheld
other circuits’ decisions to do so. United States v. Campbell, 491 F.3d 1306, 1313
(11th Cir. 2007). Finally, “the party who challenges the sentence bears the burden
of establishing that the sentence is unreasonable in light of both [the] record and
the factors in section 3553(a).” Talley, 431 F.3d at 788.
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Here, the district court complied with the requisite procedural requirements,
viewing the applicable guideline range as advisory and explicitly considering the §
3553(a) factors. The court explained that a 400-month sentence as to each count
was required to reflect the seriousness of the offenses, promote respect for the law,
provide a just punishment, and to afford adequate deterrence to criminal conduct.
We find that the sentence imposed was within the range of reasonable sentences
that the district court could have imposed, especially considering that it was below
the then-applicable Guidelines range under which White faced up to life
imprisonment and still falls within the range that would have resulted under the
amended guideline. See Campbell, 491 F.3d at 1313. Accordingly, we find that
White has not offered any reason – other than his belief that the original guideline
resulted in an unreasonable sentencing range – that his case merits a lesser
sentence. He has not met his burden of establishing that his sentence was
procedurally or substantively unreasonable.
III. CONCLUSION
White appeals his conviction and sentences for two counts of cocaine-related
offenses. We find no reversible error as to the district court’s limits on cross-
examination or its evidentiary rulings. Nor do we find any error, plain or
otherwise, as to bolstering, vouching or other prosecutorial misconduct.
31
Accordingly, Whites convictions are AFFIRMED. Similarly, we find that White
has failed to demonstrate that his sentence was procedurally or substantively
unreasonable. Therefore, we AFFIRM his sentence as to each count.
32