United States v. Matthew David James

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12642 ELEVENTH CIRCUIT
Non-Argument Calendar APRIL 21, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 8:09-cr-00480-JDW-AEP-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MATTHEW DAVID JAMES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 21, 2011)
Before BARKETT, HULL and MARCUS, Circuit Judges.
PER CURIAM:
After pleading guilty, Matthew David James appeals his concurrent 60-
month sentences for one count of conspiracy to manufacture and possess with
intent to distribute 100 or more marijuana plants, in violation of 21 U.S.C. §§ 846,
841(a)(1) and (b)(1)(B)(vii) (Count 1), and one count of manufacturing and
possessing with intent to distribute an unspecified quantity of marijuana, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count 2). After review, we
affirm.
I. BACKGROUND FACTS
A. Request for Safety-Valve Relief
James pled guilty to both counts charged in the indictment. According to
the final presentence investigation report (“PSI”), James’s total offense level was
17 and his criminal history category was I, which resulted in an advisory
guidelines range of 24 to 30 months’ imprisonment. However, because Count 1
carried a mandatory minimum five-year sentence pursuant to 21 U.S.C.
§ 841(b)(1)(B)(vii), the PSI noted that James’s advisory guidelines range became
60 months. See U.S.S.G. § 5G1.1(c)(2). The PSI did not address James’s
eligibility for safety-valve relief from the five-year mandatory minimum sentence,
pursuant to U.S.S.G. § 5C1.2.
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James filed a sentencing memorandum asking for safety-valve relief, and, if
granted, a downward variance from the advisory guidelines range.1 James’s
memorandum stated that the government believed he had not been truthful about
the “participation of an unindicted individual” in James’s marijuana growing
operation, but that James “ha[d] no knowledge regarding the participation of this
individual in the offense” and that he had provided the government with truthful
information.
In the PSI’s addendum, the probation officer responded that James was
ineligible for a safety-valve reduction because, according to the government, he
had not provided the government with “all information and evidence concerning
the offense or offenses that were part of the same course of conduct or of a
common scheme or plan.”
B. Adoption of Co-Defendant Brown’s Motion to Declare
§ 841(b)(1)(B)(vii) Unconstitutional
Prior to sentencing, James’s co-defendant Michael Brown filed a “Motion to
Declare Mandatory Minimum Sentencing Provision of 21 U.S.C.
§ 841(b)(1)(B)(vii) Unconstitutional and to Impose a Sentence Below the
1
According to James’s sentencing memorandum, the initial PSI recommended that James
receive safety-valve relief, but the PSI was revised after the government contended that James
was ineligible because he had not been truthful in providing the government with information
about his offenses.
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Otherwise Applicable Minimum Sentence.” James moved to adopt Brown’s
motion, which argued that: (1) the government was selectively prosecuting
marijuana offenders because the U.S. Attorney General had announced a policy of
not prosecuting marijuana distributors who were not violating their respective
state’s laws; (2) individuals who were similarly situated to him but who were
located in states that had deregulated marijuana were not being prosecuted under
the Controlled Substances Act and, thus, were not subject to the mandatory
minimum in § 841(b)(1)(B)(vii); (3) the government’s selective prosecution of
marijuana offenders violated his equal protection and due process rights and the
Tenth Amendment; (4) because the government was deferring to state law in
determining whom to prosecute, the district court should defer to state law in
sentencing those the government decided to prosecute; and (5) under Florida law,
Brown would not be subject to a five-year mandatory minimum sentence.
Brown attached a copy of an October 19, 2009 memorandum from Deputy
Attorney General David Ogden stating, inter alia, that investigating and
prosecuting individuals whose actions were in clear and unambiguous compliance
with state laws allowing for the medical use of marijuana would not be the most
efficient use of federal government resources, but that, even in those states,
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prosecution of commercial enterprises that unlawfully market and sell marijuana
for profit continued to be an enforcement priority.
Without ruling on James’s motion to adopt Brown’s motion, the district
court denied Brown’s motion, concluding that: (1) Brown had waived his selective
prosecution and Commerce Clause arguments by pleading guilty; (2) the
government’s prosecutorial policy did not violate the Equal Protection Clause as
applied to Brown because there was a rational basis for distinguishing between
those states that decriminalized medical use of marijuana and those states that had
not, and Brown “is not similarly situated with individuals who possess marijuana
for medical use in states which have decriminalized that use”; and (3)
§ 841(b)(1)(B)(vii) is not facially unconstitutional because there is a rational basis
for imposing a more severe punishment for higher drug quantities.
C. Sentencing
At the sentencing hearing, the district court granted James’s motion to adopt
Brown’s motion to declare § 841(b)(1)(B)(vii) unconstitutional, but then denied
the motion because James had waived any selective prosecution argument by
pleading guilty.
With respect to James’s safety-valve request, the primary issue was whether
James had been truthful about the involvement of Carlo Colucci in the marijuana
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growing operation. Colucci owned three of the homes in which James and co-
defendant Brown grew marijuana, and James and Brown had worked for Colucci’s
nightclub for years.
James testified that, to his knowledge, Colucci did not receive any
marijuana or money from the marijuana growing operation and that he had told
Timothy Lutz, the Drug Enforcement Agency’s case agent in the investigation,
about everyone involved in the operation. During his debriefing, James told
Agent Lutz, inter alia, that: (1) co-defendant Brown, and not James, paid Colucci
rent; (2) James was primarily responsible for growing the marijuana in the houses,
Brown was primarily responsible for selling the marijuana, and the two men
shared the proceeds; (3) Brown did not tell James to whom he sold the marijuana;
(4) both James and Brown sold marijuana to Zoe Placiotis, usually between two
and five pounds every two to six weeks; (5) James was aware that Brown sold
marijuana to Peter James (Defendant James’s brother), Angelo Huritos, Jay Singh
and Billy Summers (Zoe Placiotis’s boyfriend); (6) James believed that the
majority of the marijuana they grew went to Huritos; and (7) to James’s
knowledge, Colucci did not receive either marijuana or any of the proceeds from
the marijuana sales.
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Agent Lutz testified, inter alia, that various members of the marijuana
growing operation provided information that contradicted what James said during
his debriefing. From interviews with others, Agent Lutz learned that Zoe
Placiotis, Billy Summers, Peter James and Angelo Huritos started out helping
Defendant James and Brown with their growing operations and buying small
amounts of marijuana from them, but, over time, James and Brown helped them
begin their own marijuana growing operations. Zoe Placiotis and Billy Summers
operated one grow house and Peter James and Angelo Huritos operated two grow
houses. If one group needed marijuana and was out, another group would supply
them, but “it wasn’t where anybody was buying the whole shipment.” Based on
Agent Lutz’s calculations as to the average amount of marijuana the grow houses
produced, Agent Lutz did not think James and Brown were selling most of their
marijuana to Paciotis and Summers or Peter James and Huritos.
Agent Lutz identified the following information from other participants that
indicated James had not accounted for a large amount of the marijuana sales and
that James and Brown had one main buyer, probably Colucci, whom James was
refusing to identify: (1) Placiotis and Summers told Lutz they had overheard
James and Brown referring to “their guy,” who was “one guy who was taking the
majority” of their marijuana; (2) Placiotis never saw James or Brown hand
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marijuana to Colucci, but she believed Brown and James were referring to
Colucci; (3) Huritos also overheard James and Brown discussing their “one main
guy” and when Huritos asked Peter James about it, Peter said they were referring
to Colucci; (4) Placiotis did not think Defendant James ever actually worked for
Colucci’s nightclub; (5) Huritos admitted accepting money from Peter James and
then Huritos’s business issued Peter paychecks so it looked like Peter had
legitimate employment; and (6) Huritos believed Defendant James had a similar
arrangement with Colucci.
The district court advised Defendant James that it suspected he knew more
than he had told Agent Lutz and called a short recess. When the hearing resumed,
James insisted that he had truthfully informed Agent Lutz that the majority of the
marijuana he and Brown grew went to Huritos. The district court noted that
Defendant James had the burden of proof and that the court did not “just accept
the government’s representation, particularly when it’s a situation where the agent
is basing his opinion and determination on his experience and understanding from
other cooperating defendants, and you simply say, well, you don’t know.”
However, the district court found Defendant James’s claims that he did not know
to whom Brown was selling their marijuana “not persuasive” and concluded that
James had not met his burden of proof with regard to safety-valve relief. The
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district court noted James’s calculated answers and demeanor during his testimony
and the possible motivations James had for not being forthcoming about the main
buyer for the marijuana. The district court pointed out that there was “a lot of
circumstancial evidence” supporting a finding that James had not given complete
information as to whom they were selling their marijuana. The district court
concluded that James did not qualify for safety-valve relief and sentenced James to
concurrent 60-month sentences. James filed this appeal.
II. DISCUSSION
A. Motion to Declare § 841(b)(1)(B)(vii) Unconstitutional
On appeal, James, like his co-defendant Brown, argues that the district court
erred in denying the motion to declare § 841(b)(1)(B)(vii) unconstitutional.2
Specifically, James contends his equal protection rights were violated because the
government is not prosecuting “similarly situated defendants” in other states for
the same conduct (possessing 100 marijuana plants with intent to distribute) that
subjected Brown to § 841(b)(1)(B)’s five-year mandatory minimum sentence.3
2
We review de novo the constitutionality of a statute. United States v. Phaknikone, 605
F.3d 1099, 1107 (11th Cir.), cert. denied, 131 S. Ct. 643 (2010).
3
On appeal, James does not argue that § 841(b)(1)(B)(vii)’s sentencing scheme imposing
a five-year mandatory minimum sentence when the § 841(a) offense involves 100 or more
marijuana plants: (1) on its face violates the Equal Protection Clause; (2) violates the Due
Process Clause; or (3) violates the Tenth Amendment.
9
As in Brown’s appeal, we find no merit to James’s “as applied” equal
protection claim. Any alleged selective prosecution under § 841(a), the
substantive offense, is not a basis for attacking on equal protection grounds the
imposition of the five-year mandatory minimum in § 841(b)(1)(B)(vii), the penalty
provision. Put another way, James is not “similarly situated” to people who have
never been prosecuted for violating § 841(a). At a minimum, James needed to
compare himself to other defendants convicted under § 841(a) for possessing at
least 100 marijuana plants but who were not subjected to § 841(b)(1)(B)(vii).
James would be hard pressed to find a sufficient comparator for such an
equal protection claim. Once a defendant pleads guilty to possessing more than
100 marijuana plants, absent a substantial assistance motion or safety-valve relief,
the district court does not have the authority, much less the discretion, to sentence
below the five-year statutory mandatory minimum. See United States v. Castaing-
Sosa, 530 F.3d 1358, 1361-62 (11th Cir. 2008). For this reason, James’s argument
that the district court should have “deferred” to Florida’s less severe marijuana
sentencing laws lacks merit.
Despite James’s claims to the contrary, the gravamen of his equal protection
argument is not selective sentencing, but selective prosecution. As the district
court correctly concluded, James waived this argument when he pled guilty. See
10
United States v. Smith, 532 F.3d 1125, 1127 (11th Cir. 2008) (explaining that a
defendant generally waives all non-jurisdictional challenges to the conviction by
entering a guilty plea).
B. Safety-Valve Relief
“Safety-valve relief allows for sentencing without regard to any statutory
minimum, with respect to certain offenses, when specific requirements are met.”
United States v. Milkintas, 470 F.3d 1339, 1344 (11th Cir. 2006); see also 18
U.S.C. § 3553(f); U.S.S.G. § 5C1.2. The defendant must prove eligibility for
safety-valve relief by a preponderance of the evidence. See Milkintas, 470 F.3d at
1345; United States v. Poyato, 454 F.3d 1295, 1297 (11th Cir. 2006).
Of the five safety-valve criteria, the only one at issue on appeal requires the
defendant “not later than the time of the sentencing hearing” to provide truthful
and complete information “concerning the offense or offenses that were part of the
same course of conduct or of a common scheme or plan, but the fact that the
defendant has no relevant or useful other information to provide or that the
Government is already aware of the information shall not preclude a determination
by the court that the defendant has complied with this requirement.” U.S.S.G.
§ 5C1.2(a)(5). The defendant must come forward and truthfully supply all
information he has relating to his offense, and the government is not required to
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solicit information from the defendant. Milkintas, 470 F.3d at 1345-46. A drug
defendant’s obligation to provide full disclosure includes any “information
relating to the involvement of others and to the chain of the narcotics distribution.”
United States v. Cruz, 106 F.3d 1553, 1557 (11th Cir. 1997).4
We find no clear error in the district court’s safety-valve ruling. James
testified that he had provided complete and truthful information when he said
Huritos bought the majority of the marijuana and that to his knowledge Carlo
Colucci was not a buyer. Agent Lutz, on the other hand, testified that others
involved in the marijuana growing operation contradicted James in interviews.
Specifically, Agent Lutz’s investigation revealed, inter alia, that: (1) Placiotis and
Huritos overheard James and Brown discussing a main buyer and both understood
the main buyer to be Colucci; (2) based on the amount of marijuana James’s grow
houses produced, Huritos, who had his own grow houses and only purchased from
James and Brown when he needed additional marijuana, was not likely to be the
“main buyer”; (3) James and Brown collected paychecks from Colucci’s
nightclub; (4) Placiotis and Huritos believed James did not actually work at
4
“When reviewing a district court’s safety-valve decision, we review for clear error a
district court’s factual determinations . . . [and] de novo the court’s legal interpretation of the
statutes and sentencing guidelines.” United States v. Poyato, 454 F.3d 1295, 1297 (11th Cir.
2006) (quotation marks omitted). “The question of whether the information [that the defendant]
supplied to the government . . . was truthful and complete . . . is a factual finding for the district
court.” United States v. Brownlee, 204 F.3d 1302, 1305 (11th Cir. 2000).
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Colucci’s nightclub; and (5) three of James’s grow houses were rented from
Colucci. The district court was entitled to credit Agent Lutz over James, and
Agent Lutz’s testimony suggested that James was withholding the identity of his
main marijuana buyer during his debriefings. See United States v. Rodriguez, 398
F.3d 1291, 1296 (11th Cir. 2005) (explaining that when the sentencing court
resolves conflicting testimony between two witnesses, “the resolution will almost
never be clear error”).5
James argues that when a defendant testifies that he provided full and
complete information, the government is required to present competent evidence
to rebut his testimony. This argument ignores the fact that the district court heard
James’s testimony and discredited it and that the government produced Agent
Lutz’s testimony as to his investigation, which indicated that James knew of, but
would not reveal, a main marijuana buyer, who was most likely Colucci. Under
5
To the extent James argues that the district court improperly credited Agent Lutz’s
testimony based on his status as a law enforcement officer, we disagree. See United States v.
Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (noting that the district court may not rely on
a “credit law enforcement in case of conflict” rule in making credibility determinations). The
district court commented extensively on why it did not believe James’s testimony.
We also reject James’s claim that the district court impermissibly deferred to the
government’s assessment of the truthfulness and completeness of James’s information. See
United States v. Espinosa, 172 F.3d 795, 796-97 (11th Cir. 1999) (explaining that the district
court may not defer to the government in determining whether the defendant provided truthful
and complete information). The district court stated explicitly that it was not relying on the
government’s assessment, heard testimony from both Agent Lutz and James and engaged in a
lengthy discussion regarding why it found James had not provided complete information.
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the circumstances, the district court’s finding that James was withholding
information relating to his offense was not clearly erroneous.
AFFIRMED.
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