United States v. Shawn Bunkley, aka Biscuit, aka Shawn Maurice Bunkley, aka Brian Lord Bunkley

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10015 ELEVENTH CIRCUIT
OCTOBER 5, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 4:08-cr-00008-CDL-GMF-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHAWN BUNKLEY,
a.k.a. Biscuit,
a.k.a. Shawn Maurice Bunkley,
a.k.a. Brian Lord Bunkley,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(October 5, 2010)
Before BLACK, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
Shawn Bunkley appeals his 110-month sentence imposed after pleading
guilty to conspiring to possess more than 500 grams of cocaine with the intent to
distribute it, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B)(ii). Bunkley claims
that his upward variance sentence is substantively unreasonable. He also claims
that his sentence violates his rights under the Fifth and Sixth Amendments because
the district court considered testimony he gave as a cooperating witness in another
trial and unreliable hearsay in finding him responsible for drug quantities in excess
of the amount stipulated in his plea agreement. After review, we hold that the
district court imposed a substantively reasonable sentence and did not abuse its
discretion. We also hold that the district court did not err in considering hearsay
testimony at sentencing. Accordingly, we affirm.
I.
Bunkley was a participant in a major drug trafficking organization in the
Columbus, Georgia area headed by Torrence Hill. In the five months between
October 2005 and February 2006, Hill’s organization moved approximately 300
kilograms of cocaine into the Columbus area. Bunkley trafficked in multi-
kilogram quantities of cocaine, and was one of the primary drug distributors in
Hill’s organization. He was also the closest connection to Hill’s drug supply
source, second only to Hill himself.
2
A joint federal-state investigation ultimately led to the arrest of Hill,
Bunkley, and others in Hill’s organization. Through execution of a series of search
warrants, agents recovered more than 260 kilograms of cocaine, 848 kilograms of
marijuana, and lesser quantities of crack cocaine. Agents also seized more than
$500,000 in cash and a drug ledger representing more than $2 million in
uncollected drug proceeds.
Bunkley was indicted with other members of Hill’s organization. He was
charged with conspiring to distribute and possess with intent to distribute more
than five kilograms of cocaine, in violation of 21 U.S.C. § 846, and distributing
and possessing with intent to distribute more than five kilograms of cocaine, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), and 18 U.S.C. § 2. Bunkley
later pleaded guilty pursuant to a plea agreement to a superseding information
charging him with conspiring to possess with intent to distribute 500 grams or
more of cocaine. Bunkley agreed to cooperate with the government and, in return,
the government agreed to bring his cooperation to the district court’s attention and
to seek a reduction in sentence if Bunkley provided substantial assistance. The
plea agreement stipulated that “for purposes of computing the guideline range
pursuant to USSG Section 1B1.3, Relevant Conduct, the amount of contraband
attributable to [Bunkley] is greater than 500 grams but less than 2 kilograms of . . .
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cocaine.”
In his plea agreement, Bunkley agreed that the district court has authority to
impose a sentence greater than the advisory guidelines range. He also agreed that
the district court could determine any pertinent fact at sentencing by a
preponderance of the evidence and could consider any reliable information,
including hearsay. And finally, Bunkley expressly agreed that the drug-quantity
stipulation was not binding on the district court. At the change-of-plea hearing,
Bunkley again acknowledged that the district court was not required to follow the
government’s recommendations in the plea agreement and that it could impose a
sentence higher than the applicable guideline range.
After accepting Bunkley’s guilty plea, the district court accepted guilty pleas
from Hill and a number of other co-conspirators and imposed sentences in those
cases. Based on the evidence presented in those proceedings, the district court
became concerned that the stipulated amount of cocaine in Bunkley’s plea
agreement did not accurately reflect his role in Hill’s organization and the
seriousness of his criminal conduct. As a result, the district court continued
Bunkley’s sentencing and advised the parties that it intended to question
investigators so that it could make an independent determination of the amount of
drugs attributable to Bunkley. The court also “put[ Bunkley] on notice that . . . [it]
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may consider relevant conduct that’s different than . . . or shows more
responsibility for more drugs than what the government has agreed to.”1
The district court then presided over the trial of Hill’s attorney, John Mark
Shellnut, who was charged with aiding and abetting Hill’s drug conspiracy and
money laundering. During that trial, Bunkley testified on behalf of the government
that he had personally delivered $125,000 in drug proceeds to Shellnut at Hill’s
request. Bunkley also testified that as part of Hill’s organization he had trafficked
in “up to 25 kilograms” of cocaine at a time. On cross-examination, he agreed
with defense counsel that the drug-quantity stipulation in his plea agreement did
not accurately reflect the extent of his criminal conduct and that he had distributed
“well over 200 kilo[grams]” of cocaine in the Columbus area.
Following the Shellnut trial, the district court reconvened Bunkley’s
sentencing hearing and called an investigating officer, Jonathan Memmo, to testify
about the extent of Bunkley’s involvement in Hill’s drug distribution organization.2
The district court admonished Officer Memmo that his testimony should not be
based on information Bunkley provided in cooperating with the government, and
1
The district court permitted Bunkley to file written objections to its proposed course of
action. In his response, Bunkley conceded that the district court was not bound by the drug-
quantity stipulation and that it had the authority to hold a hearing to determine relevant conduct.
2
The district court determined that it would call and question Officer Memmo because
Bunkley’s plea agreement precluded the government from putting on evidence that contradicted
the drug-quantity stipulation.
5
Officer Memmo repeatedly reaffirmed that his testimony was based on information
“separate and independent” from “anything Mr. Bunkley said to [him] or anyone
with the government.” He agreed that Bunkley was a “significant player” in Hill’s
organization and confirmed that Bunkley was “dealing substantially more than 500
grams to 2 kilograms of cocaine.” Officer Memmo explained that he had received
information from two different co-conspirators regarding Bunkley’s drug
distribution: one stated that Bunkley had received about 63 kilograms of cocaine
and handled more than $700,000 in drug proceeds; the other stated that, at Hill’s
direction, he had personally delivered an additional 75 kilograms of cocaine to
Bunkley for distribution.3
Based on Officer Memmo’s testimony, the district court determined that
Bunkley was responsible for trafficking in 138 kilograms of cocaine, which the
district court described as a “conservative estimate . . . of his involvement in the
drug conspiracy.” The district court observed that Bunkley’s testimony in the
Shellnut trial supported its finding and determined that neither United States
Sentencing Guidelines § 1B1.8 (Nov. 2009) nor the Fifth Amendment prevented it
from considering that testimony in fashioning an appropriate sentence above the
3
Officer Memmo identified one of these individuals as Cortez Johnson. He was the
person in Hill’s organization responsible for storing cocaine prior to its distribution, and the
person to whom Bunkley delivered the cocaine he transported from Alabama. Johnson was
arrested with 43 kilograms of cocaine and indicted along with Bunkley.
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guideline range. The district court emphasized, however, that “Agent Memmo’s
testimony, independent from any statements or information obtained from this
defendant pursuant to his cooperation agreement with the government,
substantiates relevant conduct of 138 kilograms of cocaine.” The district court
reiterated this point in a detailed sentencing order, explaining that “the testimony
of Agent Memmo independently supported the Court’s findings and sentence.”
In accordance with U.S.S.G. § 1B1.8, the district court calculated Bunkley’s
advisory guideline range using the drug-quantity stipulation in his plea agreement.
With a criminal history category of I, a two-level reduction under U.S.S.G. §
2D1.1(b)(11), and a three-level reduction for acceptance of responsibility under
U.S.S.G. § 3E1.1, it determined that Bunkley’s advisory guideline range was 37 to
46 months. After considering the guideline range and Officer Memmo’s
testimony, however, the district court found that a sentence outside the guideline
range was warranted. In determining the extent of any variance, it considered the
fact that the advisory guideline range for a defendant, like Bunkley, responsible for
trafficking in 138 kilograms of cocaine would be 108 to 135 months. After giving
Bunkley credit for substantial assistance and acceptance of responsibility, it
determined that an upward variance sentence of 110 months was “consistent with
and required by the sentencing considerations enumerated in 18 U.S.C. § 3553.”
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The district court explained that this sentence
takes into consideration the true nature and circumstances of the
offense and the history and characteristics of Defendant. It reflects the
actual serious nature of the illegal conduct in which Defendant was
engaged and promotes respect for the law. In addition, it provides a
just punishment for the offense, particularly in light of the sentences
given others similarly situated to Defendant. The sentence should also
afford adequate deterrence for this Defendant in the future and for
others who may contemplate engaging in similar unlawful conduct.
Finally, the sentence will protect the public for a reasonable period of
time from further crimes of this Defendant.
Although the district recognized that its sentence could adversely affect other
defendants’ willingness to enter into plea agreements and cooperate with the
government, it determined that these concerns were outweighed by the need to
promote respect for the law and to deter others from engaging in similar criminal
conduct. Bunkley now appeals his sentence.
II.
Although not clearly delineated, Bunkley appears to raise five basic
arguments on appeal. First, he contends that his sentence is substantively
unreasonable because the district court failed to consider the disparity between
Bunkley’s sentence and the more lenient sentences some of his co-conspirators
received and failed to give Bunkley appropriate credit for his substantial assistance.
Second, he claims that the district court effectively breached his plea agreement by
declining to accept the drug-quantity stipulation, and that the district court’s
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decision to vary upward violates “public policy” because defendants will no longer
agree to cooperate with the government. Third, he claims that the district court
erred by relying on “unreliable hearsay testimony” from the two co-conspirators,
which had not been subjected to cross-examination. Fourth, he argues that the
district court violated his Fifth Amendment right against self-incrimination by
considering Bunkley’s testimony in the Shellnut trial. And finally, he claims that
the government has breached its plea agreement by filing an appellate brief in this
case. We address each contention in turn.
We review de novo constitutional sentencing issues. United States v.
Cantellano, 430 F.3d 1142, 1144 (11th Cir. 2005). We review the substantive
reasonableness of a sentence for abuse of discretion. Gall v. United States, 552
U.S. 38, 46, 51, 128 S. Ct. 586, 594, 597 (2007). This reasonableness review is
“deferential,” requiring us to determine “whether the sentence imposed by the
district court fails to achieve the purposes of sentencing as stated in section
3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). “In
reviewing the reasonableness of a sentence outside the Guidelines range, appellate
courts may therefore take the degree of variance into account and consider the
extent of a deviation from the Guidelines,” in addition to the sentencing court’s
justifications. Gall, 552 U.S. at 47, 128 S. Ct. at 594-95. An appellate court may
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not presume that a sentence outside the guidelines is unreasonable and must give
“due deference to the district court’s decision that the § 3553(a) factors, on a
whole, justify the extent of the variance.” Id. at 51, 128 S. Ct. at 597. The fact that
the court of appeals “might reasonably have concluded that a different sentence
was appropriate” is not sufficient to justify reversal. Id.; see also Talley, 431 F.3d
at 788 (“A district court may impose a sentence that is either more severe or lenient
than the sentence we would have imposed, but that sentence must still be
reasonable.”). The burden of proof is on the party challenging the reasonableness
of the sentence. United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006).
A.
We conclude that the district court’s sentence was substantively reasonable
on the facts of this case. We have repeatedly recognized that there is a “range of
reasonable sentences from which the district court may choose,” Talley, 431 F.3d
at 788, and we will remand for resentencing only if we are “‘left with the definite
and firm conviction that the district court committed a clear error of judgment in
weighing the § 3553(a) factors by arriving at a sentence that lies outside the range
of reasonable sentences dictated by the facts of the case,’” United States v. Pugh,
515 F.3d 1179, 1191 (11th Cir. 2008) (quoting United States v. McBride, 511 F.3d
1293, 1297–98 (11th Cir. 2007)). Here, the district court weighed Bunkley’s role
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in the offense and the fact that he trafficked in 138 kilograms of cocaine, the need
to avoid sentencing disparities with other defendants who traffick in similarly large
quantities of cocaine, and the need to promote adequate respect for the law and to
deter criminal conduct. Based on these considerations, it imposed a sentence well
below the statutory maximum of 40 years. On the record before us, we cannot say
that the district court committed “a clear error of judgment” in imposing the
sentence that it did.
Bunkley contends that the district court failed to consider adequately 18
U.S.C. § 3553(a)(6), which requires district courts to consider “the need to avoid
unwarranted sentence disparities among defendants with similar records who have
been found guilty of similar conduct.” This argument is unpersuasive for two
reasons. First, the record demonstrates that the district court did in fact consider
the need to avoid sentencing disparities in deciding upon a 110-month sentence.
Indeed, the district court explained that a sentence in the guideline range resulting
from the drug-quantity stipulation in the plea agreement “is typically given to the
most modest street-level dealer,” and it expressly found that Bunkley’s 110-month
sentence was warranted “in light of the sentences given [to] others similarly
situated to [him].” Bunkley’s contention that the district court failed to consider
this factor is therefore meritless.
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Second, we disagree that Bunkley’s sentence is unreasonable because two of
his codefendants were placed on pretrial diversion. “Disparity between the
sentences imposed on codefendants is generally not an appropriate basis for relief
on appeal.” United States v. Regueiro, 240 F.3d 1321, 1325–26 (11th Cir. 2001).
As we have explained, “‘to adjust the sentence of a co-defendant in order to cure
an apparently unjustified disparity between defendants in an individual case will
simply create another, wholly unwarranted disparity between the defendant
receiving the adjustment and all similar offenders in other cases.’” Id. at 1326(quoting United States v. Chotas, 968 F.2d 1193, 1198 (11th Cir. 1992)).
Furthermore, individuals placed on pretrial diversion are not similarly situated to
Bunkley because they were never prosecuted or convicted of any conduct. See
United States v. Spoerke, 568 F.3d 1236, 1252 (11th Cir. 2009).
Finally, we reject Bunkley’s claim that the district court failed to provide
credit for his acceptance of responsibility and substantial assistance. The record
clearly shows that the district court selected a sentence at the low end of the
variance range precisely for these reasons. The district court’s sentence was not an
abuse of discretion.
B.
The district court did not effectively breach Bunkley’s plea agreement by
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declining to accept the drug-quantity stipulation. The district court was not a party
to the agreement, and therefore could not breach it. Nor did it err by refusing to
accept blindly the stipulation in Bunkley’s plea agreement and making factual
findings to determine the basis for Bunkley’s sentence. District courts are not
bound by stipulated facts in a defendant’s plea agreement.4 See United States v.
Forbes, 888 F.2d 752, 754 (11th Cir. 1989). We have explained that “‘it is not
appropriate for the parties to stipulate to misleading or non-existent facts, even
when both parties are willing to assume the existence of such “facts” for purposes
of the litigation.’” Id. (quoting U.S.S.G. § 6B1.4 cmt. (Nov. 1987)). “Stipulations
are encouraged to aid, but not to supplant, the sentencing court’s fact-finding.” Id.
Although “stipulations are expected to be accurate and complete,” the district court
“cannot rely exclusively upon stipulations in ascertaining factors relevant to the
determination of sentence.” Id. (quotation omitted). Rather, the district court need
only “consider the stipulation, together with the results of the presentence
investigation, and any other relevant information” in determining the factual basis
for the sentence. Id. (quotation omitted). The district court did not err by refusing
4
As stated above, Bunkley repeatedly acknowledged prior to his sentencing that the
district court was not bound by the drug-quantity stipulation and remained free to impose a
sentence up to the statutory maximum. His plea agreement expressly states that “[n]othing
herein limits the sentencing discretion of the Court” and that the district court “has the authority .
. . to impose a sentence that is more severe . . . than the sentence called for by the guidelines.”
The district court reiterated this point during the change-of-plea hearing, advising Bunkley on at
least four separate occasions that his sentence may exceed the advisory guideline range.
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to accept the drug-quantity stipulation and finding facts relevant to Bunkley’s
sentence.
C.
We further conclude that the district court did not err by relying on hearsay
testimony from Officer Memmo at sentencing. To the extent Bunkley claims that
the district court erred because the statements from the co-conspirators were not
subject to cross-examination, his contention is without merit. It is well established
that the Sixth Amendment right to confrontation is a trial right that does not apply
at sentencing. See, e.g., Cantellano, 430 F.3d at 1146 (“The right to confrontation
is not a sentencing right.”); accord United States v. McNair, 605 F.3d 1152, 1123
n.112 (11th Cir. 2010).
Insofar as Bunkley claims that this testimony was so unreliable as to violate
his due process rights, we disagree.
A sentencing 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 evidence has sufficient indicia of reliability, the
court makes explicit findings of fact as to credibility, and the
defendant has an opportunity to rebut the evidence.
United States v. Baker, 432 F.3d 1189, 1253 (11th Cir. 2005); see also U.S.S.G. §
6A1.3(a) (Nov. 2009) (“[T]he court may consider relevant information without
regard to its admissibility under the rules of evidence applicable at trial, provided
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that the information has sufficient indicia of reliability to support its probable
accuracy.”). A defendant does have a due process right not to be sentenced based
on false or unreliable information. See United States v. Reme, 738 F.2d 1156,
1167 (11th Cir. 1984). To prevail on a due process challenge to the consideration
of hearsay testimony, however, the defendant bears the burden of proving that the
challenged testimony is materially false or unreliable. See United States v.
Bourne, 130 F.3d 1444, 1447 (11th Cir. 1997); United States v. Taylor, 931 F.2d
842, 847 (11th Cir. 1991); United States v. Rodriguez, 765 F.2d 1546, 1555 (11th
Cir. 1985).
Bunkley has not shown that the Officer Memmo’s testimony was materially
false or unreliable. The district court expressly found to the contrary that Officer
Memmo’s testimony was credible. Officer Memmo specifically identified the co-
conspirators during the sentencing hearing, including Cortez Johnson, a co-
conspirator who pleaded guilty to participating in Hill’s organization and was
sentenced by the district court. Bunkley was aware that the district court intended
to call investigators to establish his role in the conspiracy, and Bunkley was
permitted to thoroughly cross-examine Officer Memmo regarding the information
he received from the co-conspirators. What is more, the statements of the co-
conspirators, as related by Officer Memmo, were corroborated by the undisputed
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facts in the presentence investigation report (“PSR”), which found that Bunkley
was responsible for more than a hundred kilograms of cocaine. Because Bunkley
did not object to these facts in the PSR, he is deemed to have admitted them for
purposes of sentencing. See, e.g., United States v. Beckles, 565 F.3d 832, 844
(11th Cir. 2009) (explaining that “[f]acts contained in a [PSR] are undisputed and
deemed to have been admitted unless a party objects to them before the sentencing
court with specificity and clarity” and that “[i]t is the law of this circuit that a
failure to object to allegations of fact in a [PSR] admits those facts for sentencing
purposes” (quotations omitted)). On this record, the district court did not err by
basing its sentence on Officer Memmo’s testimony.5
D.
Finally, we address Bunkley’s contention that the government breached his
plea agreement by filing a brief in this appeal supporting the district court’s
sentence. We review de novo whether the government breached a plea agreement.
United States v. Mahique, 150 F.3d 1330, 1332 (11th Cir. 1998). “The
government is bound by any material promises it makes to a defendant as part of a
plea agreement that induces the defendant to plead guilty.” United States v.
5
Given our conclusion that the district court did not err in basing its sentence on Officer
Memmo’s testimony, we need not consider whether the district erred by considering Bunkley’s
testimony in the Shellnut trial because any error was harmless.
16
Taylor, 77 F.3d 368, 370 (11th Cir. 1996). “Whether the government violated the
agreement is judged according to the defendant’s reasonable understanding at the
time he entered his plea.” United States v. Boatner, 966 F.2d 1575, 1578 (11th Cir.
1992).
We conclude that the government did not breach the plea agreement by
filing a brief in this appeal. As part of his plea agreement, the government
stipulated to the quantity of drugs attributable to Bunkley. The government agreed
that any information Bunkley provided through his cooperation with the
government would not be used to calculate his advisory guideline range, and it
agreed to move for a reduction in sentence if Bunkley provided substantial
assistance. The government fully complied with these obligations.
Filing a brief on appeal in support of the district court’s sentence does not
run afoul of the government’s contractual obligations to Bunkley. Only two
provisions in the plea agreement relate to appeals from the district court’s sentence.
The first pertains solely to circumstances under which either party would be
permitted to appeal the sentence imposed. This provision does not encompass any
other aspect of the appeal process, much less limit the government’s ability to
respond to any appeal Bunkley filed. The second specifically provides that
“nothing in this plea agreement shall affect the government’s right or obligation to
17
appeal.” Neither of these provisions creates a reasonable understanding that the
government would not file an appellate brief in support of the district court’s
sentence. That being the case, the government did not breach Bunkley’s plea
agreement. See United States v. Winters, 411 F.3d 967, 975 (8th Cir. 2005);
United States v. Colon, 220 F.3d 48, 51–53 (2d Cir. 2000).
AFFIRMED.
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