United States v. Stanley Norris Jordan

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 27, 2006
No. 05-12512 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00194-CR-ORL-22-JGG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STANLEY NORRIS JORDAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 27, 2006)
Before DUBINA, CARNES and HULL, Circuit Judges.
PER CURIAM:
Stanley Norris Jordan appeals his 151-month sentence for conspiracy to
possess with intent to distribute 50 grams of crack cocaine, in violation of 21
U.S.C. § 841(b)(1)(A)(iii). He raises three issues.
I.
First, Jordan contends that his attorney learned on the morning of the
sentence hearing new facts about Jordan’s arrest on state charges, including
incriminating statements attributed to Jordan and the identity of the confidential
informant involved in Jordan’s state arrest, and as a result, it was an abuse of
discretion for the district court not to allow a continuance of the sentence hearing
so that counsel could investigate matters further.
We review a denial of a motion to continue sentencing only for an abuse of
discretion. United States v. Lee, 427 F.3d 881, 896 (11th Cir. 2005), cert. denied,
126 S.Ct. 1447 (2006). “This issue must be decided in light of the circumstances
presented, focusing upon the reasons for the continuance offered to the trial court
when the request was denied.” United States v. Knowles, 66 F.3d 1146, 1160-61
(11th Cir. 1995) (citation and quotation marks omitted). Denial of a motion for a
continuance may violate a defendant's constitutional right to assistance of counsel.
United States v. Verderame, 51 F.3d 249, 251 (11th Cir. 1995). However, “[t]o
prevail on such a claim, a defendant must show that the denial of the motion for
continuance was an abuse of discretion which resulted in specific substantial
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prejudice.” Id.Because: (1) Jordan failed to ask for a continuance until the morning of the
sentencing hearing, although he had known of the existence of the relevant
evidence, a video tape, for three weeks; (2) the court recessed the hearing to allow
him time to view the evidence and interview the government witnesses; and (3)
Jordan has failed to demonstrate prejudice, the district court did not abuse its
discretion by denying the motion to continue the sentencing hearing.
II.
Jordan next contends that despite his pending state charges he should have
received a reduction of his sentence based on his acceptance of responsibility,
because: (1) the commentary to the guidelines provides that a defendant is not
obliged to reveal conduct outside of his offense of conviction; and (2) since he
cooperated with the government regarding the offense of conviction, the denial of
the reduction results in him being sentenced unfairly based on uncharged,
unproven conduct, that was unrelated to the instant offense. He asserts that
application notes 1(a) and 3, for U.S.S.G. § 3E1.1, which emphasize conduct
compromising the offense of conviction, conflict with this circuit’s position on
whether a defendant’s post-plea criminal conduct, unrelated to the instant offense,
affects entitlement to a reduction for acceptance of responsibility.
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We review “the district court's determination of acceptance of responsibility
only for clear error.” United States v. Amedeo, 370 F.3d 1305, 1320 (11th Cir.
2004). We will not set aside a district court’s determination that a defendant is not
entitled to a reduction for acceptance of responsibility “unless the facts in the
record clearly establish that a defendant has accepted personal responsibility.” Id.
at 1320-21. Section 3E1.1 allows the district court to decrease the offense level by
two levels “if the defendant clearly demonstrates acceptance of responsibility for
his offense.” U.S.S.G. § 3E1.1(a). Note 1 states that:
a defendant is not required to volunteer, or affirmatively admit,
relevant conduct beyond the offense of conviction in order to obtain a
reduction under subsection (a). A defendant may remain silent in
respect to relevant conduct beyond the offense of conviction without
affecting his ability to obtain a reduction under this subsection.
U.S.S.G. § 3E1.1, comment. (n. 1(a)). The commentary further states that evidence
of the defendant’s truthful admission of his criminal conduct “may be outweighed
by conduct of the defendant that is inconsistent with such acceptance of
responsibility. A defendant who enters a guilty plea is not entitled to an
adjustment under this section as a matter of right.” U.S.S.G. § 3E1.1, comment. (n.
3).
“A district court is authorized to consider subsequent criminal conduct, even
if it is unrelated to the offense of conviction, in determining whether a decrease for
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acceptance of responsibility is appropriate.” Pace, 17 F.3d at 343. The Pace Court
held that the purpose of application note 1 to the comment for § 3E1.1 is not to
prevent a sentencing court from considering a defendant’s subsequent criminal
conduct when there is sufficient proof of it, but to prevent the court from denying a
reduction simply because the defendant does not voluntarily admit all his criminal
conduct. Id. at 344.
The state charges against Jordan were for a robbery he allegedly committed
in connection with an attempt by him to sell drugs while he was out on bond after
pleading guilty and while awaiting sentencing on the federal charges that led to this
sentence. Because the law of this circuit permits district courts to consider the
occurrence of criminal conduct unrelated to the charged offense in evaluating
acceptance of responsibility, the district court did not clearly err by denying Jordan
a reduction of sentence for acceptance of responsibility based upon the unrelated
state charges filed against him.
III.
Finally, Jordan contends that his fear of affecting his state trial prevented
him from defending himself against the state charges at this sentence hearing and
from offering any mitigating evidence about those charges, and as a result, the
sentence imposed was unreasonable.
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We review sentences for reasonableness. See United States v. Winingear,
422 F.3d 1241, 1244 (11th Cir.2005); United States v. McVay, 447 F.3d 1348,
1353 (11th Cir. 2006). The district court first must correctly calculate the
defendant's guideline range, then, using the 18 U.S.C. § 3553(a) sentencing factors,
the court can impose a more severe or more lenient sentence as long as it is
reasonable. United States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005).
“Review for reasonableness is deferential.” United States v. Talley, 431
F.3d 784, 788 (11th Cir. 2005). “[T]he party who challenges the sentence bears the
burden of establishing that the sentence is unreasonable in the light of both th[e]
record and the factors in section 3553(a).” Id. A sentence within the advisory
guideline range is not per se reasonable, but usually will be reasonable. See id.(“when the district court imposes a sentence within the advisory Guidelines range,
we ordinarily will expect that choice to be a reasonable one.”).
Jordan has cited no authority supporting his position that a strategic decision
not to present available mitigating evidence at sentencing, for fear of affecting
some other case, renders any resulting sentence unreasonable, and there is no
logical reason that it would. His sentence at the low end of the applicable
guidelines range is reasonable.
AFFIRMED.
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