United States v. Preston Angelo Williams

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 5, 2008
No. 07-12392 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00078-CR-ORL-28-JGG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PRESTON ANGELO WILLIAMS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 5, 2008)
Before CARNES, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Preston A. Williams appeals the 57-month sentence he received after
pleading guilty, with the benefit of a plea agreement, to one count of conspiracy to
commit fraud and other offenses against the United States, in violation of 18
U.S.C. § 371, and four counts of theft of government property, in violation of 18
U.S.C. § 641. Williams argues on appeal that the district court (1) erred in failing
to grant him an acceptance of responsibility reduction, or otherwise erred in
calculating his sentencing range, and (2) violated the Eighth Amendment
prohibition against cruel and unusual punishment and its proportionality clause by
imposing the 57-month sentence. For the reasons set forth below, we affirm.
BACKGROUND
In the wake of Hurricanes Katrina and Rita, Williams engaged in a
conspiracy to defraud the Federal Emergency Management Agency (“FEMA”).
He ultimately received four checks totaling $16,858, and he obtained or caused to
be obtained an additional $24,358 in FEMA funds for persons other than himself
whom he knew were not entitled to the funds. In May 2006, a federal grand jury
returned a thirteen-count indictment against Williams. He ultimately entered into a
plea agreement, wherein he pled guilty to five of the thirteen counts.
The plea agreement contained a sentence appeal waiver. According to the
appeal waiver provision, Williams agreed to waive his right to appeal his
sentences, or to challenge his sentences collaterally on any ground, including the
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ground that the district court erred in determining his applicable sentencing range
pursuant to the Guidelines, except on the ground that: (1) his sentences exceeded
his applicable sentencing range as determined by the district court pursuant to the
Guidelines; (2) his sentences exceeded the statutory maximum penalty; or (3) his
sentences violated the Eighth Amendment to the Constitution.
Prior to sentencing, and while on bond that was later revoked, Williams was
shot in the back while fleeing from carjackers. His attorney later requested a
complete medical examination because puss pockets had allegedly formed around
the bullet wounds and prison officials were allegedly trying to charge Williams for
treatment of those wounds. Defense counsel never asked the district court to take
this into consideration at sentencing.
The district court ultimately sentenced Williams to 57 months’
imprisonment on each of the five counts, to run concurrently, and it dismissed the
remaining counts of the indictment.
DISCUSSION
A. Acceptance of Responsibility
As an initial matter, we note that Williams’s appellate brief, which was
prepared with the assistance of counsel, does not argue that: (1) his guilty pleas
were involuntary; (2) the plea agreement is invalid because the government
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breached it in any respect, including by failing to request that he receive an
acceptance of responsibility reduction; or (3) he did not knowingly or voluntarily
agree to the sentence appeal waiver. Williams has thus abandoned any such
arguments on appeal. See Dalrymple v. United States, 460 F.3d 1318, 1327, n.11
(11th Cir. 2006) (deeming abandoned an argument not raised in the appellants’
initial brief). Even so, the transcript of the change of plea hearing reveals that the
magistrate judge satisfied the core concerns of Fed. R. Crim. P. 11, and discussed
the appeal waiver provision with Williams. Accordingly, Williams’s guilty pleas
and the sentence appeal waiver are valid.
We ordinarily review a district court’s acceptance of responsibility
determination for clear error. United States v. Amedeo, 370 F.3d 1305, 1320 (11th
Cir. 2004). To the extent that an appeal waiver is applicable, however, an
appellant is barred from challenging his sentence on appeal. See United States v.
Frye, 402 F.3d 1123, 1129 (11th Cir. 2005) (per curiam). A sentence appeal
waiver may be enforced, so long as it was knowingly and voluntarily made.
United States v. Bushert, 997 F.2d 1343, 1350 (11th Cir. 1993).
Williams does not argue that the appeal waiver was not knowingly or
voluntarily made. Moreover, because Williams’s sentence did not exceed his
Guidelines range, as determined by the district court, and none of the other limited
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exceptions to his appeal waiver is applicable here, he is precluded from appealing
his sentences based on the district court’s refusal to award him an acceptance of
responsibility reduction, or on the ground that the court otherwise erred in
calculating his guideline range.
B. Eighth Amendment
We ordinarily review de novo the legality of a sentence. See United States
v. Moriarty, 429 F.3d 1012, 1025 (11th Cir. 2005) (per curiam). An unpreserved
objection, however, will only be reviewed for plain error. United States v. Zinn,
321 F.3d 1084, 1087 (11th Cir. 2003). To prevail under the plain error standard,
an appellant must show that (1) the district court plainly erred, and (2) the error
implicated his substantial rights. Id. at 1087. Regardless of the standard of review
that we apply, however, Williams’s claims fail.
The Eighth Amendment prohibits the infliction of cruel and unusual
punishment, U.S. Const. amend. VIII, but it only applies to convicted inmates.
Purcell ex rel. Estate of Morgan v. Toombs County, Ga., 400 F.3d 1313, 1318 n.3,
1319 (11th Cir. 2005). By contrast, the Fourteenth Amendment Due Process
Clause governs pretrial detainees. Andujar v. Rodriguez, 486 F.3d 1199, 1203 n.3
(11th Cir.), cert. denied, — U.S. —, 128 S. Ct. 385, 169 L. Ed. 2d 271 (2007). As
noted above, Williams’s appeal waiver only permits him to raise an Eighth
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Amendment claim, not a Fourteenth Amendment claim. Nevertheless, even if the
Eighth Amendment is applicable here, and Williams’s claims are based exclusively
on it, his claims fail.
1. Deliberate Indifference
After Williams indicated that he had medical needs that prison officials had
not met, the district court sentenced him within the Guidelines range and
specifically recommended that he be committed to a medical facility so that his
medical needs could be addressed. There is no basis for an argument that such
action constitutes deliberate indifference in violation of the Eighth Amendment.
2. Proportionality
The Eighth Amendment “contains a ‘narrow proportionality principle’ that
‘applies to noncapital sentences,’” Ewing v. California, 538 U.S. 11, 20, 123 S. Ct.
1179, 1185, 155 L. Ed. 2d 108 (2003) (quoting Harmelin v. Michigan, 501 U.S.
957, 996–97, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (Kennedy, J., concurring
in part and concurring in judgment)), and forbids the imposition of a sentence that
is “grossly disproportionate” to the offense committed, United States v. Raad, 406
F.3d 1322, 1324 (11th Cir. 2005) (per curiam). An appellant carries the burden of
making this threshold showing. United States v. Johnson, 451 F.3d 1239, 1243
(11th Cir.) (per curiam), cert. denied, — U.S. —, 127 S. Ct. 462, 166 L. Ed. 2d 329
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(2006). “Outside the context of capital punishment, there are few successful
challenges to the proportionality of sentences.” Id. at 1242. “In general, a
sentence within the limits imposed by statute is neither excessive nor cruel and
unusual under the Eighth Amendment.” Moriarty, 429 F.3d at 1024 (internal
quotation marks omitted).
The 57-month sentences that Williams received were within the statutory
limits and the appropriate Guidelines range for Williams’s offenses. Thus,
Williams has not satisfied his burden of showing that his sentences were grossly
disproportionate to the offenses committed.
CONCLUSION
For the foregoing reasons, we affirm Williams’s 57-month total sentence.
AFFIRMED.
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